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.

Upcoming guest posting on the World Bank and ‘villageization’ in Ethiopia

by Rhodri C. Williams

Since early last year, Human Rights Watch has kept a weather eye on Ethiopia, where land concessions in the Gambella region and agricultural development plans in the Omo valley are giving rise to allegations of violent mass-displacement of local villagers and pastoralists. HRW also reported on the role of international development assistance actors in actively or passively facilitating such patterns of displacement.

The violent and systematic nature of the displacement alleged to have taken place in Ethiopia – and the government’s invocation of development priorities as a justification for them – place the country firmly within a broader global trend. Just as the 2004 tsunami forced humanitarian advocates for the global population of internally displaced persons (IDPs) to turn their attention from conflict to natural disasters, I have argued that the effects of new trends involving large scale investment in land – the global land rush – should prompt new humanitarian and human rights scrutiny of development-induced displacement.

In Ethiopia, such scrutiny has been quick to follow HRW’s reports. In September 2012, the NGO Inclusive Development International (IDI) alleged a link between World Bank projects in Ethiopia and the Gambella ‘villageization’ program and assisted affected indigenous persons in submitting a complaint to the Bank’s Inspection Panel. Now, as reported by Helen Epstein in the NYR Blog, the Panel has forced the Bank to decide whether to act on a finding that a full investigation is warranted:

Terra Nullius no more – Australia approaches constitutional recognition of its indigenous population

by Rhodri C. Williams

The BBC yesterday picked up on a curious piece of legislative news from Australia, with the lower house of Parliament having unanimously passed a bill presenting a constitutional IOU to the country’s indigenous population. In effect, the legislator agrees to lead from the front in seeking to drum up popular support for constitutional recognition of Aborigines and Torres Straits Islanders, and to act on that support as soon as it is there:

“I do believe the community is willing to embrace the justice of this campaign because Australians understand that indigenous culture and history are a source of pride for us all,” Australian Prime Minister Julia Gillard said. ”This bill seeks to foster momentum for a referendum for constitutional recognition of Aboriginal and Torres Strait Islander peoples.”

The bill comes as part of a longer term process of reconciliation dating back to the early 1990s, when a Royal Commission was set up to examine Aboriginal deaths in custody and the Australian High Court belatedly disowned the terra nullius doctrine that had premised the takeover of aboriginal land on the demeaning idea that it was not truly occupied by other human beings. This tradition of emphatic non-recognition of Aboriginal peoples was symbolically reversed in 2008 by then-Prime Minister Kevin Rudd’s groundbreaking apology to the Aboriginal and Torres Strait Islander peoples:

We today take this first step by acknowledging the past and laying claim to a future that embraces all Australians. …. A future where all Australians, whatever their origins, are truly equal partners, with equal opportunities and with an equal stake in shaping the next chapter in the history of this great country, Australia.

The present bill is admirably short and pithy. In its Article 3, entitled ‘Recognition’ it sets out a series of propositions that are revolutionary only in their self-evidentness:

(1) The Parliament, on behalf of the people of Australia, recognises that the continent and the islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples.

(2) The Parliament, on behalf of the people of Australia, acknowledges the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters.

(3) The Parliament, on behalf of the people of Australia, acknowledges and respects the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples.

It then goes on to mandate the Prime Minister to “consider the readiness of the Australian public” to support a constitutional referendum on recognition of Aboriginal peoples and take steps to that effect within 12 months from its entry into force. The explanatory memorandum goes on to explain in somewhat more detail the thinking behind this somewhat unorthodox legislative approach: 

This Bill reflects an intention to pursue meaningful change to the Constitution that echoes the hopes and aspirations of Aboriginal and Torres Strait Islander peoples and unites the nation.  It is one part of the ongoing conversation that needs to happen in the lead up to constitutional change. In particular, the Bill will enable all Australians to become familiar with formal recognition of Aboriginal and Torres Strait Islander peoples ahead of constitutional change.

A review provision sets out a process for Parliament to consider next steps towards constitutional recognition, while a sunset provision ensures that legislative recognition does not become entrenched at the expense of continued progress towards constitutional change.

The Bill is not intended to be a substitute for constitutional recognition.  ….  The Bill does not restrict the scope of future issues for debate in regards to constitutional recognition of Aboriginal and Torres Strait Islander peoples.

In the annals of the law and society debate, this Bill may come to represent something of a hallmark. As a legislative attempt to encourage consensual change rather than simply ram change home based on an argument of necessity, it stands out both in its transparency and in the relatively sophisticated mechanism it seeks to set up. It also represents a sterling example of new constitutional approaches to managing diversity that posit a more sustainable relationship through transparent, participatory and open-ended processes than through foreclosing such processes with an unalterable compact.

There is of course a risk that this type of legislation may be seen as an attempt by the Government to play for time or appease reactionary elements in society. On the other hand, accommodating minority demands always imposes a cost on the majority (or in any event prevents the majority from externalising such costs any longer). If Australia’s current moral redistribution and its political and economic consequences are to be sustainable in a democratic system, then it is imperative that bills such as the present one help to undergird moral necessity with political consensus.

Empowering communities to document and protect their land claims: A solution to the global land grab?

by Rachael Knight

Rachael Knight is the Program Director of the Community Land Protection Program at Namati, a new global legal empowerment organization, and author of its recent report on community land titling. She previously served as Director of the International Development Law Organization’s (IDLO) Community Land Titling Initiative, working to document and protect the customary land rights of indigenous groups in Uganda, Liberia and Mozambique.

Community meeting in Uganda (photo credit Namati)

For billions of rural people, land is their greatest asset: the source of food and water, the site of their livelihoods, and the locus of history, culture, and community. Yet more than ever, rural land is in demand. In recent years, governments in Africa have been granting vast land concessions to foreign investors for agro-industrial enterprises and forestry and mineral exploitation. According to recent data, transactions covering at least 57,393,083 hectares of land have been granted or are under negotiation.  Often, governments grant concessions with the goal of stimulating development and strengthening the national economy. Yet such concessions are further exacerbating trends of growing land scarcity and weakening the land tenure security of rural communities.

Even when communities welcome private investment, they may not be consulted about the terms of the investment, properly compensated for their losses, or given a say in land management after the investment is launched. Alternatively, such investments may be undertaken in ways that lead to environmental degradation, human rights violations, loss of livelihoods, and inequity. In this context, protections for rural communities and their lands are urgently needed.

In some countries, national laws allow communities to register or title their lands as a whole and then manage their land according to local needs and interests. Such community land documentation processes – which document the perimeter of the community according to customary boundaries – are a low-cost, efficient and equitable way of protecting communities’ customary land claims. Community land documentation efforts not only protect large numbers of families’ lands at once, but also the the forests, water bodies, and grazing areas that rural communities depend on to survive and are often the first to be allocated to investors, claimed by elites, and appropriated for state development projects. Importantly, formal recognition of their customary land claims gives communities critical leverage in negotiations with potential investors.

However, because these laws transfer control over valuable lands and resources away from the state and into the hands of the community members themselves, governments have so far dragged their heels in implementing them. For example, in the 14 years since the passage of Uganda’s Land Act (1998), not one Ugandan community has yet gained title to its customary lands.

Week in links – Week 27/2012 – grab some sugar (or water) with your land?

Incredibly, its been about 7 months since my last WIL, but I thought I might dust the institution off now that the summer is upon me. As usual, it would be more accurate to describe this as a month in links, but here goes.

First, a moment to note the passing last month of Elinor Ostrom, a pioneering economist who decided that the commons might not actually be so tragic after all. At the top of my list of readings for whenever I eventually become an actual rather than frustrated academic. One of those scholars where even if one has yet to read her, one suspects she has colored analysis of these issues so thoroughly that her works will seem familiar.

Next, on the familiar theme of the global land rush/grab, a few items of interest recently. First, Grain just came out with a new report arguing that much of the land investment going on in Africa is actually targeting the scarce water resources necessary for large-scale agriculture – and in a manner heedlessly destructive of local, sustainable water management systems. Second, the Journal of Peasant Studies has been cranking out an amazing amount of analysis of the land grab phenomenon in all three issues of this year’s volume 39 (many articles available for free download).

And finally, Human Rights Watch released a grim report last month detailing the Ethiopian government’s self-inflicted land grab in the southern Omo valley, where a dam and state-run sugar plantations are expected to run 300,000 indigenous persons off their land, while ruining the livelihoods of a further 200,000 to the south in Kenya’s Lake Turkana region:

These developments – which threaten the economic, social, and cultural rights of the Omo valley’s indigenous inhabitants – are being carried out in contravention of domestic and international human rights standards, which call for the recognition of property rights, with meaningful consultation, consent, and compensation for loss of land, livelihoods, and food security, and which state that displacement, especially of indigenous peoples from their historic homelands, must be treated as an absolute last resort.

If that doesn’t drive home the message that sugar is the new palm oil, this video from Cambodia may. David Pred, who is pushing for the EU to take a more rigorous approach to human rights abuses related to Cambodian land concessions will hopefully guest post on the blood sugar phenomenon shortly.

Not that palm oil has reformed, mind you. The Economist provided a timely reminder of the inverse relationship between the money to be had from this lucrative form of monoculture and the chances of Indonesian-controlled West Papua ever being able to achieve ‘external’ self-determination in the manner East Timor did. Meanwhile, the ICTJ rather bravely attempts to promote a transitional justice approach to a situation in West Papua where the only transition seems to be toward more oppressive and militarized control and less chances of even meaningful internal self-determination (e.g. autonomy).

Update: See David Pred, Is the European Commission sweet on land grabbing? How trade benefits to sugar companies displace Cambodian farmers (23 July 2012)

TN stays TN – and wishes a happy Summer break

Thanks to all TN readers who participated in last week’s poll on re-dubbing the blog. I was not unpleasantly surprised to find a consistent majority (currently 53%) in favor of keeping TerraNullius, ‘edgy’ as it may be. In addition, there was no clear alternative, with the rest of the votes split fairly evenly for all the other proposed names. And as a last point, overall participation was fairly low compared with readership of the blog, indicating that its name probably just is not a big issue for many of you.

So, TerraNullius it is for the time being. However, I would like to point out that this decision remains subject to revision. I would also continue to invite anyone with strong views either way on the matter to freely express them (perhaps as a comment on this posting). As an international law doctrine, terra nullius has been  abused to support flagrantly racist policies, the effect of which are still felt by tens of thousands of indigenous persons, most notably in Australia. It is a term badly in need of some form of lustration, but as a profoundly non-indigenous person, it is hardly my place to lead this process. If I can provide a forum for some of the necessary conversations to be had, however, more is the better.

So, with all that out of the way, I want to wish all TN readers a happy and relaxing summer of 2012 (oops, yet more insensitivity to the Antipodes – and the rest of the Southern Hemisphere!) While the blog will not be closed down completely over the next few months, I look forward to running it in very low gear for a while. Guest postings welcomed as always from those so inclined. And for those more interested in sleeping in, poolside and a good book, hasta luego!

What Rights? Comparing developing countries’ national legislation on community forest tenure rights

by Fernanda Almeida

Fernanda Almeida is the lead author of RRI’s “What Rights?” report and works as an international legal consultant on comparative legal, regulatory and policy research and analysis.

Indigenous Peoples and forest communities have long-established customary land rights to a large proportion of the world’s forests. The recognition of these rights by governments and international law and jurisprudence, has proven to be one of the few success stories in the wake of the Rio Earth Summit in 1992. Where these rights are recognized, Indigenous Peoples and other communities are not only able to enjoy their most fundamental human rights, but also to develop themselves sustainably.

For example, in the case of Amazonian traditional populations in the Extractive Reserve of Marajoí (Brazil), the açaí palm had virtually disappeared due to previous over-harvesting caused, at least in part, by unclear tenure. Once land tenure issues were resolved, traditional populations invested their resources in managing the açai area as a way to bring back wildlife, fish, and the açai palm itself. As a result, biodiversity was restored and the population had secured its means of subsistence.^[1]

In spite of the importance of such rights to the promotion of a sustainable development agenda, very little was known about the extent to which governments around the world had recognized them and how. The What Rights? report by the Rights and Resources Initiative begins to fill this gap. It analyzes national laws that relate to the forest tenure rights of indigenous peoples and communities in 27 developing countries, home to 2.2 billion rural people, that collectively contain about 75 percent of the forested land in all developing countries.[2]

The twentieth anniversary of Mabo (and the reason I need to change the name of this blog)

by Rhodri C. Williams

It is twenty years this week since the High Court of Australia overturned an odious legal doctrine that happens to share the name of this blog. Although the name of the blog has always been meant to reflect the abstract meaning of this term (‘no mans land’, reflecting the contested nature of land and territorial issues in both in international law and national practice), I have remained uncomfortable with it throughout due to the concrete meaning lurking down under. As a tribute to the unpretentious man who brought this doctrine crashing down, I hereby pledge to rename this blog in a manner both un-confusing and inoffensive within the next few weeks (readers are free to submit suggestions).

Back to the tyranny of the majority in Bolivia’s TIPNIS dispute

by Rhodri C. Williams

After much equivocation, President Evo Morales of Bolivia has returned to his original position that the population of both departments abutting the Isiboro Secure Indigenous Territory and National Park (‘TIPNIS’ in Spanish) – rather than the residents of the Park themselves – should decide on his long-running ambition to build a road directly through its center:

… Morales said on Tuesday that it made sense for everyone in Beni and Cochabamba to vote on the road because the residents of these two departments would be the ultimate “beneficiaries.”  In contrast, according to Evo, polling the residents of TIPNIS would potentially allow “small groups” of opponents to veto the desires of the majority (perhaps not within the park itself, but within the two departments that would be connected by the road).

Nicholas Fromherz reflects on this news from a procedural justice perspective at South American Law, pointing out that President Morales’ repeated failure to respect the rules on consultation he himself gave constitutional status represents a fundamental injustice.

Granted, the millions who live in Cochabamba and Beni would, as Morales indicates, be the prime beneficiaries of this project.  But would they also suffer the severest of its consequences?  When deciding who should have a say in the matter, we would presumably agree that it would be improper to hand the decision over to the potential “winners” while muzzling the “losers.”

One of my current academic works focuses on this very topic.  Like all big public projects, environmentally-sensitive projects – roads, dams, power plants, etc. – imply winners and losers.  It is my contention that the upsides of these projects are often quite diffuse, inuring to the benefit of large regions or even entire nations.  The downsides, in contrast, are often concentrated in relatively small areas.

This analysis links what have been two of the core concerns discussed in this blog in relation to disputes over land and territory. First, there is the principle, widely accepted in theory and almost as widely flouted in practice, that those forced to bear the direct burden of development projects should end up in in no less favorable a position then they would have been had the project not been carried out.  As Natalie Bugalski observed in these pages, in relation to the Asian Development Bank’s involuntary resettlement policy, fifteen years of practice has brought limited progress:

The rationale behind the policy was a shift away from the perception that development-induced displacement and attendant harms suffered by those physically and economically displaced is a “sacrifice” some people have to make for the larger good. It is apparent, however, that despite the adoption of increasingly progressive and rights-oriented policies, the utilitarian view of development-induced displacement continues to dominate the culture and individual staff views of the ADB and many other aid and development institutions.

Second, the stakes in such controversies are even higher when the parties at the business end of development projects constitute minority groups, and particularly indigenous peoples. In such cases, the failure to give special weight to the concern of such groups can lead not only to the destruction of their livelihoods, but also the loss of their identity. The idea that indigenous peoples whose territory has been incorporated into larger states should be permitted to defend it against the whims of a political community they did not choose to be part of is integral to texts such as the UN Declaration on the Rights of Indigenous Peoples. As I noted in my own first stab at analyzing the TIPNIS imbroglio, resort to majority rule may be tantamount to revoking TIPNIS’ status:

The rationale for recognizing the territories of indigenous peoples is typically the need to protect them – as minorities – from the effects of democratic decision-making processes they can never win. This is what makes both the failure to consult with the affected communities in advance and the proposal for a referendum now more than dubious. Even at the regional level, a majority can surely be found that would prefer commerce with Brazil to the less tangible benefits of living next to some of the world’s last functioning indigenous societies. At the national level, support for the road may be even stronger. Mr. Morales may be indigenous, but he is also an elected politician.

The controversy will no doubt rumble on, particularly given that the plight of the indigenous minorities resident in TIPNIS appear to have captured the sympathy of the broader public. However, the abandonment of progressive principles by a President elected on the strength of his commitment to equitable development and accountability through consultation indicates just how much work remains to be done.

New RRI report (and upcoming guest post) on community land rights in tropical forests

by Rhodri C. Williams

The Rights and Resources Initiative (RRI) just released a new report indicating that forest peoples have “quietly gained unprecedented legal rights to the land and resources owned under customary law” over the last twenty years. However, the authors also express concerns about legal obstacles to the exercise of such rights and the risk of their rollback by elite groups seeking to facilitate international land and natural resource deals. According to RRI’s press release:

“Forest peoples are caught between the forces of a drive for environmental sustainability and the intense pressure of economic development”, said Jeffrey Hatcher, Director of Global Programs for RRI, and one of the authors of the new report. “Despite tremendous progress in establishing legal tenure regimes, a lack of political will and bureaucratic obstacles make it a struggle to implement any real action in most forest-rich developing nations. ….”

The report is described as providing “the most comprehensive global legal analysis to date of the status of forest tenure rights held by Indigenous Peoples and other local communities in more than two-dozen developing countries”, which together account for “approximately 75 percent of the forests of the developing world, home to some 2.2 billion people.” It was released together with a separate study on the positive development effects of recognizing customary forest tenure. Both reports taken together constitute the results of an analysis undertaken by RRI on the twentieth anniversary of the 1992 Earth Summit in Rio de Janeiro, in order to inform the upcoming Rio+20 Conference on June 20-22.

I am very pleased to announce that Fernanda Almeida, the lead author of the report, will be guest-writing on TN next week in order to provide further analysis of the results of RRI’s research and insights on how these findings may be of practical assistance in efforts to secure the tenure rights of forest peoples.

Fernanda’s guest-posting can now be read at the following link:

- What Rights? Comparing developing countries’ national legislation on community forest tenure rights (11 June 2012)