As a conceptual framework based on international human rights standards, a human rights–based approach to development aims to promote and protect human rights through operational processes. It seeks to analyze root causes of inequalities and redress discriminatory practices and unjust distributions of power, which impede development. Within this framework, policies, plans and processes for development and human rights share a common preoccupation with the necessary outcomes for improving peoples’ daily lives.
When addressing the specific situation of indigenous peoples, recognition of their collective rights can provide the framework for adopting a human rights–based and culturally sensitive approach. Such an approach should also take several key elements into consideration. These elements are: the significance of lands, territories and natural resources; respect for the principles of participation and free, prior and informed consent; and the need for disaggregated data and culturally sensitive indicators.
Indigenous Peoples’ Lands, Territories and Natural Resources
Land rights, access to land and control over it and its resources are central to indigenous peoples throughout the world . Territories and land have material, cultural and spiritual dimensions for indigenous communities and, through their deep understanding of and connection with the land, they have managed their environments sustainability for generations. In order to survive as distinct peoples, indigenous peoples and their communities need to be able to own, conserve and manage their territories, lands and resources on the basis of their collective rights. This is why protection of their collective right to lands, territories and natural resources has always been a key demand of the international indigenous peoples’ movement and of indigenous peoples and organizations everywhere—and this is why it is an issue that must be given priority when dealing with indigenous people.
Today, several international instruments recognize the strong ties that exist between indigenous peoples and their ancestral lands. The UN Declaration on the Rights of Indigenous Peoples (articles 25 and 26) and ILO Convention No. 169 (article 14) recognize the right of indigenous peoples to own and control their land and, to differing degrees, their right to own, use and manage the natural resources on those lands. Several other articles within the Declaration also recognize a number of related rights, including the right to free and informed consent prior to approval of interventions affecting their lands.
The Convention on Biological Diversity (negotiated in 1992 and ratified by 190 State parties) is another important international instrument that acknowledges the close and traditional dependence of many indigenous and local communities on biological resources, and the contribution that traditional knowledge can make to both the conservation and the sustainable use of biological diversity, two fundamental objectives of the Convention.
At the national level, many countries have in recent decades reformed their constitutional and legal systems in response to calls from indigenous movements for legal recognition of their right to protection and control of their lands, territories and natural resources. Latin America has led the way with such constitutional reforms taking place in most countries, a number of which go as far as to acknowledge the collective nature of indigenous peoples (an essential element of land rights). In Asia, the Philippines has a Constitution (1987) that “recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development” and a law—the 1997 Indigenous Peoples’ Rights Act—that recognizes the right of indigenous peoples to their ancestral domains and lands.
Despite these important advances, indigenous peoples worldwide continue to suffer from policies and actions that undermine and discriminate against their customary land tenure and resource management systems, expropriate their lands, extract their resources without their consent and result in displacement from and dispossession of their territories. In his March 2007 report, the UN Special Rapporteur on the situation of the human rights and fundamental freedoms of indigenous people stated:
“Although in recent years many countries have adopted laws recognizing the indigenous communities’ collective and inalienable right to ownership of their lands, land-titling procedures have been slow and complex and, in many cases, the titles awarded to the communities are not respected in practice”.
Indigenous peoples’ land rights are also threatened by development processes. As pointed out by Ms. Victoria Tauli-Corpuz, the chair of the UNPFII, “The term ‘development’ has acquired a negative connotation for indigenous peoples even if this is called ‘sustainable’, because their histories are replete with traumatic experiences with development projects, policies and programmes. In fact, mainstream development is regarded as one of the root causes of their problems.” Such mainstream development includes, inter alia, the creation of protected areas and natural parks, infrastructural construction works (roads, dams, etc .) and all types of extractive activities (mining, logging, agri-business, etc.). The UNDG Guidelines note: “Indigenous peoples’ lands have been disproportionately affected by national development activities because they often contain valuable natural resources including timber, minerals, biodiversity resources, water and oil, among others”.
Access to and ownership and development of these resources remains a contentious issue, and concern has been expressed by the IASG that the effort to meet the targets laid down for the MDGs could in fact have harmful effects on indigenous and tribal peoples, such as an accelerated loss of lands and natural resources or displacement from those lands. The MDGs have also often been criticized by indigenous peoples for not reflecting their relationship with the land. Indigenous peoples see a clear relationship between loss of their lands and their communities’ situations of marginalization, discrimination and underdevelopment.
According to Erica-Irene Daes, a UN Special Rapporteur in 2001, “The gradual deterioration of indigenous societies can be traced to the non-recognition of the profound relation that indigenous peoples have to their lands, territories and resources.” Income inequalities and social heterogeneity are often the result of land alienation. Indigenous peoples are also acutely aware of the relationship between the environmental impacts of various types of development on their lands and the environmental and subsequent health impacts on their peoples. Indigenous well-being is therefore often seen as inextricably linked with their relationship to lands and traditional practices.
The Permanent Forum has, over the years, issued a number of recommendations regarding indigenous rights to lands, territories and natural resources, and this subject was the focus of its sixth session (2007). On that occasion, the Forum stressed the fundamental importance of indigenous peoples’ security of land use and access, as well as the importance of land rights for broader processes of poverty reduction, good governance and conflict prevention. One recommendation was therefore to urge States to take measures to halt land alienation in indigenous territories through, for example, a moratorium on the sale and registration of land—including the granting of land and other concessions—in areas occupied by indigenous peoples; and further to support indigenous peoples in preparing their claims for collective title.
As Ms. Victoria Tauli-Corpuz observed: “One of the key reasons why indigenous peoples are being disenfranchised from their lands and territories is the existence of discriminatory laws, policies and programmes that do not recognize indigenous peoples’ land tenure systems and give more priority to claims being put by corporations—both state and private”.
The Permanent Forum further recommended that: “Governments, bilateral and multilateral donor and development agencies and other development partners responsible for, or assisting in the implementation of sectoral strategies or other programmes affecting lands owned, occupied or otherwise used by indigenous peoples, review the consistency of such strategies and programmes with internationally recognized standards for the protection of the rights of indigenous peoples and the impact of such strategies and programmes on indigenous communities”. This recommendation should be seen in the light of the fact that, although the United Nations agencies, the World Bank and the regional development banks (ADB, IDB) all acknowledge indigenous peoples’ special ties to their lands, territories and resources, their operational policies and guidelines do not have a clear commitment to protect the ancestral lands of indigenous peoples. Instead, they recommend “special considerations” or “specific safeguards” to be taken if operations directly or indirectly affect lands, territories or natural resources traditionally occupied or used by indigenous peoples. In its annual report presented during the Forum meeting, the IASG noted, however, that “development activities, including those carried out by multilateral and bilateral agencies, can sometimes unwittingly dispossess indigenous peoples from their lands and territories” and suggested therefore that members take up this issue with their country teams.
The Forum finally reaffirmed the central role of indigenous peoples in decision making with regard to their lands and resources by referring to the United Nations Declaration on the Rights of Indigenous Peoples, which states that land and resource related projects “shall not be implemented without the free, prior and informed consent of indigenous peoples” (article 32). The UNDG Guidelines include a number of guiding principles related to land, territories and natural resources.
Some Guiding Principles Related to Land, Territories and Natural Resources
- Indigenous peoples’ lands and territories should be largely recognized, demarcated and protected from outside pressures;
- All efforts should be made to ensure that indigenous peoples determine the activities that take place on their lands and in particular that impacts on the environment
- and sacred and cultural sites are avoided;
- Indigenous peoples’ rights to resources that are necessary for their subsistence and development should be respected;
- In the case of state owned sub-surface resources on indigenous peoples’ lands, indigenous peoples still have the right to free, prior and informed consent for the
- exploration and exploitation of those resources, and have a right to any benefitsharing arrangements.
Source: Resource Kit on Indigenous Peoples, United Nations.
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