by Rachael Knight, Naomi Roht-Arriaza and Melissa Riess-James
Rachael Knight is the Director of Namati’s Community Land Protection Program. Naomi Roht-Arriaza is a Distinguished Professor of Law at University of California, Hastings College of Law. Melissa Riess-James is the Project Coordinator for the Community Land Rights CaseBase.
As global demand for land and resources rises, dispossession of community land is increasing. Lawyers and front line legal advocates are stepping forward to defend communities’ rights, yet often struggle to find supportive legal precedent. There have been many powerful legal victories in national, regional and international courts, but advocates need to know about these cases to be able to harness that power.
To address this need, Namati has created the Community Land Rights CaseBase: the first free, online, searchable database of case law from around the world relevant to community land and natural resource rights. In this post, we describe the inspiration and creation of CaseBase and invite you to join us in building this tool.
The Power of Effective Legal Strategies
For billions of 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 up for grabs. Local communities are being displaced, either directly or through the despoliation of the water, wildlife and other resources on which they depend. As dispossession grows, so does the resistance to it, leading to conflict, the criminalization of social protest, and the violation of a wide range of human rights.
Increasingly, communities seeking to defend and protect their land and natural resource claims are finding allies in the legal community and fighting back through local and national courts. Lawyers are basing challenges on a wide variety of legal sources, including national or international environmental laws, the rights of indigenous or tribal communities under international law, property rights, constitutional and human rights law, and common law principles.
In some cases they are finding support in the courts. For example:
- National courts are holding governments accountable for violations of their obligations under international law:, in SATIIM v Attorney General of Belize (2014), the Supreme Court of Belize found that the Belize government had violated the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) by issuing construction permits on the land of the Maya people without obtaining the Mayas’ free, prior and informed consent.
- Lawyers are crafting creative legal strategies and waging their campaigns across a variety of legal forums: in Loserian Minis v. Thomson (2014) lawyers used US discovery procedure (28 U.S.C. § 1782) to obtain information vital to litigation in Tanzanian courts.
- Courts are increasingly receptive to evidence necessary to support traditional land claims, but which historically has not been considered admissible: in Roy Sesana v. Attorney General of Botswana (2006), the High Court of Botswana conducted extensive testimony gathering and site-visits in order to include customary evidence in its considerations.
The Need to Share Lessons
Yet accessing relevant case law can be difficult, especially when records are not digitized or available online. Too often advocates work in isolation, unaware of successful arguments or strategies from other nations that they could leverage. The variety of legal contexts underlying land dispossession also complicate advocates’ efforts to draw cross-national comparisons. Advocates working within an area of specialized law, like environmental law or constitutional law, may not be aware of relevant precedent in other fields.
Some existing efforts already point in this direction. The Due Process of Law Foundation, based in Washington, DC, has gathered cases from Latin America focusing on indigenous peoples’ right to free, prior and informed consent; the Environmental Law Alliance Worldwide shares strategies based on environmental law. Yet the lack of a coherent compilation and analysis of existing case law from around the world concerning community land and natural resources rights has weakened advocates’ ability to look to other nations’ legal precedent to build successful legal arguments.
CaseBase: Building a Shared Collection of Case Law and Resources
To meet this need, Namati created the Community Land Rights CaseBase, a searchable library of judicial decisions concerning community land and natural resource rights. CaseBase includes full texts of decisions from domestic courts around the world, as well as international and regional courts. Every case is accompanied by a case summary that outlines the fact pattern, the claims and remedies sought, the court’s reasoning, and the ruling.
CaseBase is a free, open clearinghouse: advocates are encouraged to submit cases they have litigated and decisions they have found helpful, share information about recent victories and challenges, and update existing case entries with information about enforcement or implementation of judgments. Good legal precedent – taken together as a body of law – can help lawyers learn how better litigate cases concerning the defense of communities’ land and natural resource rights. Moreover, by including legal defeats, CaseBase can support advocates to avoid making legal arguments that have proved unsuccessful.
CaseBase is one of many resources designed for the Global Legal Empowerment Network – a community of practitioners and researchers who share and develop ways to advance justice. The CaseBase team will be constantly seeking and uploading new case law, but the growth of CaseBase will also depend upon participation from lawyers and advocates around the world. As advocates add their cases to CaseBase’s collection, it will be possible to undertake in-depth analyses of regional and thematic trends in jurisprudence concerning community land and natural resource rights. Lawyers and researchers interested in studying trends in the admissibility of landscape-based evidence, or the application of customary land administration and management in formal jurisprudence, for example, might look to CaseBase.
Please join us in using CaseBase, adding comments and updates, submitting cases, and helping to spread the word. Court battles to protect community land are hard-fought and hard-won. Working in solidarity, we can keep good cases from idling in law books. We can place them in the people’s hands.
TerraNullius 