Indigenous and Community Land Rights

^{Photo: Source of The Nile, Nile Crescent, Uganda, by Melissa Askew, license: Free to use under the Unsplash License}

By Rick de Satgé, reviewed by Dwayne Mamo, Documentation & Communications Manager of the International Working Group for Indigenous Affairs (IWGIA) – a global human rights organisation dedicated to promoting, protecting and defending Indigenous Peoples’ rights.

Estimates of the amount of land held in terms of customary and Indigenous systems of land rights vary widely across contexts. According to the Rights and Resources Initiative (RRI), communities and Indigenous Peoples are estimated to hold as much as 65% of the world’s land area under customary systems¹.

The RRI study conducted in 2015 was based on data from 64 countries comprising 82% of the global land area. However just 18% of this land area was formally recognized as owned or controlled by local communities and Indigenous Peoples². This gap has been cited as “a major driver of conflict, disrupted investments, environmental degradation, climate change, and cultural extinction”³.

The current state

There are important distinctions between ‘Indigenous peoples’ and communities, and the estimated breakdown of land under customary and Indigenous tenure systems varies widely by continent.

Great care needs to be taken when assessing the validity of statistics returned through internet searches. Close attention needs to be paid to what is being measured, distinguishing between different land use categories including agricultural land, forested land, protected areas, conservation and nature reserves and urban areas.

Recent research suggests that there are at least 476.6 million people living in 70 countries who define themselves as Indigenous and who constitute around 5% of the total world population⁴. These people are descended from populations which inhabited a country prior to the time of conquest or colonisation and continue to retain at least some of their own social, economic, cultural and political institutions⁵. However there is a general lack of reliable data on indigeneity worldwide which impacts on their ability to secure their land rights.

^{Global map of lands managed and/or controlled by Indigenous Peoples. Map via Garnett et al. (2018) doi:10.1038/s41893-018-0100-6}

The map above was created drawing on information from 127 data sources. It uses the equal area Mollweide projection to give appropriate weight to tropical regions where most Indigenous peoples have land. However, this projection has implications for shape accuracy which makes it difficult to visualise Indigenous lands in countries on the margins of the map such as New Zealand⁶. Recent research has estimated that Indigenous people’s lands account for 37% of all remaining natural lands across the earth⁷

Africa

According to the UN Permanent Forum on Indigenous Issues in 2013 there were estimated to be 50 million Indigenous people in Africa. Of these, the majority were nomadic and semi nomadic pastoralists and hunter gatherers⁸.

There remains some ambiguity over what is meant by customary tenure systems:

The term customary tenure is an omnibus term that at its most basic means collectively owned land usually under the authority of traditional leadership. In its contemporary usage in the literature, it ranges from … ‘permissive occupancy’⁹. of state lands in such countries like Zimbabwe to formalised customary tenure regimes that allow registration of collective and individual title in countries like Burkina Faso, Uganda, Rwanda and Tanzania¹⁰.

When estimating land holdings, it is important to distinguish what is being measured. For example, it is essential to differentiate between total land area and agricultural land. In 2020 the World Bank estimated that 42.5% of the total land area in Sub Saharan Africa was agricultural land, while 22% of the total land areas consists of forests and woodlands. Overall, valuable land resources are unevenly distributed between countries and among peoples. For example, it has been estimated that 1% of Africa’s rural land area contains 21% of its rural population, while 20% of its rural lands contain 82% of its rural people¹¹.

The exact amount of land that is held under customary or Indigenous tenure systems in Africa is difficult to determine due to various factors. These include the lack of data and conflicting definitions of customary tenure. According to one estimate, outside of national parks and private land, roughly 90% of sub-Saharan Africa’s land is administered under customary tenure arrangements, based on a society’s customs and history¹². At the same time, while 16.5% of land has protected area status in sub-Saharan Africa, Indigenous land rights frequently overlap with protected areas¹³.

Asia

According to the RRI 23% of land in Asia is controlled by local communities and Indigenous people¹⁴. Of this land, the overwhelming majority is located within China which constitutes 43% of the land in Asia included in the study and contributes 87% of the total area owned or controlled by communities in the region. China recognizes 49% of its land area as owned by Indigenous Peoples and local communities in the form of collective ownership of forest land and pastures.

Latin America

Latin America includes the entire continent of South America in addition to Mexico, Central America, and the islands of the Caribbean, totalling 33 countries. In a study of 13 countries in Latin America the RRI found that Indigenous peoples and local communities owned or controlled 23% of the land area¹⁵. According to the 2010 census data there were about 42 million Indigenous people in Latin America who comprised around 8% of the total population¹⁶. Some 13 Caribbean countries do not collect statistical information on Indigenous people¹⁷. There is high variability between countries in the region and there are dissimilarities in the criteria used to account for the Indigenous population. Many countries do not recognise Indigenous groups that have recently migrated to their countries as part of their Indigenous population¹⁸.

Oceania

There are fourteen countries and over 10,000 islands in the Southern Hemisphere which make up the region known as Oceania. The countries include Australia, Papua New Guinea, New Zealand, Fiji and the Solomon Islands. Given this complex geography reliable data is not available to determine the percentage of land associated with Indigenous peoples and communities.

^{Map showing Oceanian countries and some Southeast Asian nations. Source: World Atlas}

North America

According to the US Department of the Interior: Indian Affairs, a federal Indian reservation is an area of land reserved for a tribe or tribes under treaty or other agreement with the United States, as permanent tribal homelands, and where the federal government holds title to the land in trust on behalf of the tribe¹⁹.

Approximately 56.2 million acres are held in trust by the United States for various Native American tribes and individuals. There are approximately 326 land areas in the U.S. administered as federal Indian reservations (i.e., reservations, pueblos, rancherias, missions, villages, communities, etc.)²⁰.

Europe (East and West) and Scandinavia

Most of the Indigenous people in Europe are found in the Arctic region. The Saami people live in Sweden, Norway, Finland and Russia. While there is no reliable figure, they represent an estimated 50,000-100,000 people, according to the International Working Group on Indigenous Affairs²¹. In Greenland, a self-governing territory within the Danish Realm, out of a total 57,691 of inhabitants 89.6% are Greenlandic Inuits.

At the intersection between Europe and Asia, Russia is home to 160 distinct peoples, including 40 that are officially recognized as indigenous. Among them are the Nenets of the Siberian Arctic who are reindeer herders, or the nomadic Enets, which number just a few hundred individuals²².

Key concepts and terms

The land rights of Indigenous people and communities are often described in relation to four overlapping frameworks:

• Historical injustice
• Human rights
• Cultural survival
• Environmental justice.

The Historical Injustice Framework: This regards the displacement of Indigenous and local communities from their lands as an injustice stemming from colonialism, advocating that their rights to land should be restored. It prioritises social justice and equity and proposes practical measures to protect Indigenous peoples and communities from land grabbing by global and local elites.

The Human Rights Framework: This takes the position that Indigenous and community land rights are fundamental human rights. It focuses on strengthening the protection which can be afforded by international treaties and conventions if meaningfully enforced.

The Cultural Survival Framework: This framework proposes that the recognition and protection of Indigenous and community land rights is essential for preserving and maintaining cultural traditions and practices, which are closely tied to access and control over ancestral land.

The Environmental and Climate Justice Framework: This framework emphasises the ways in which Indigenous and community land rights play an important role in preserving biodiversity and ecosystems, based on evidence of how these communities have traditionally lived in harmony with the environment. As the world begins to recognise the severity of the climate emergency there has been a marked increase in the measures which promote Indigenous peoples as environmental defenders of globally significant natural resources.

Indigenous Peoples’ lands and territories constitute at least 28 per cent of the global land surface including unique ecosystems and vital biodiversity.

According to the IUCN “Indigenous Peoples and Local Communities (IPLCs) are vital custodians of the world’s remaining natural landscapes. As such, achieving the ambitious goals and targets in the post-2020 global biodiversity framework will not be possible without the lands and territories recognised, sustained, protected and restored by IPLCs”²³.

Definitions

Indigenous and First Nations Peoples

There are a number of different terms in use to describe Indigenous peoples and communities whose rights in land are derived through systems of customary tenure. According to the ILO there are an estimated 476 million Indigenous people worldwide. Although they make up just 6% of the global population, they account for about 19% of the extreme poor²⁴.

Indigenous peoples' land rights are specific to those communities that have a distinct historical or cultural identity that is related to their land, and they have a unique relationship to their traditional territories.

The commonly accepted definition of First Nations People is Indigenous groups of people who are the original inhabitants of a particular territory or region, before the arrival of colonizers or settlers. This term is primarily used in Canada to refer to the Indigenous peoples of North America, including the Inuit, Métis, and Indigenous peoples who identify as First Nations.

The term "First Nations" emerged in the 1980s during discussions about Indigenous self-determination and was used to replace the term "Indian" in Canadian law and policy.

Examples of recognized First Nations groupings from across the globe include:

• Maori people of New Zealand
• Aborigines of Australia
• Saami people of Northern Europe
• Inuit people of Greenland and Arctic regions
• Métis people of Canada
• Native Hawaiians
• Ainu people of Japan.

All of these groups have a distinct cultural and historical identity and are recognized as First Nations by their respective governments and international organizations.

Community land rights

Community land rights refer to a group of people living in a particular area that share a common identity and are recognized as a distinct entity by the state. This group may or may not be considered Indigenous.

Systems of customary tenure reflect the customary rules and practices that communities use to manage and allocate land and resources within their territories. These systems are based on traditional practices and are often highly adapted to local ecological, social, and cultural conditions. They are typically recognized by the state but may not be given the same legal protections as formal land rights. 

International legal frameworks and policies

The international legal framework defining and protecting the rights of Indigenous people includes:

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) adopted by the UN General Assembly in 2007. This is a non-binding resolution outlining the rights of Indigenous peoples related to their land, resources, culture, and self-determination.

International Labour Organization Convention No. 169 on Indigenous and Tribal Peoples, which is a legally binding instrument that sets minimum standards for the rights of Indigenous and tribal peoples.

The minimum standards for the rights of Indigenous and tribal peoples contained within the ILO Convention No. 169 include:

•  Self-determination: The right of Indigenous and tribal peoples to freely determine their political status and pursue their economic, social, and cultural development.
•  Cultural integrity: The right of Indigenous and tribal peoples to maintain and develop their own distinct cultures, traditions, and languages.
•  Land and resource rights: The right of Indigenous and tribal peoples to ownership and control over their traditional lands, territories, and resources.
•  Consultation and participation: The right of Indigenous and tribal peoples to be consulted and to participate in decision-making processes that affect them.

The Convention on Biological Diversity also recognizes the rights of Indigenous peoples to their traditional knowledge and resources. Others include the African Charter on Human and Peoples’ Rights, and the Nordic Saami Convention.

In December 2022, states adopted the Kunming- Montreal global biodiversity framework (KMGBF), a global agreement on the protection of the world's biodiversity. This framework acknowledges the important roles and contributions of Indigenous peoples and local communities as custodians of biodiversity and partners in conservation, restoration and sustainable resource use²⁵.

The World Bank Environmental and Social Framework requires borrowers of funding for development projects to respect the tenure rights of Indigenous peoples in several ways.

Firstly, the standards require the borrower to ensure that Indigenous peoples have adequate and effective participation in consultations and decision-making processes related to the project, and that their views and concerns are taken into consideration in project design, implementation, and monitoring.

Secondly, the standards require the borrower to assess and mitigate the potential adverse impacts of the project on Indigenous peoples' lands, territories, and resources, and to avoid or minimize such impacts to the fullest extent possible.

Thirdly, the standards require the borrower to identify and recognize Indigenous peoples' tenure rights, including their customary tenure systems, and to avoid depriving them of their rights without their free, prior, and informed consent. (FPIC)

FPIC is a specific right granted to Indigenous Peoples recognised in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which allows Indigenous Peoples to provide or withhold/ withdraw consent, at any point, regarding projects impacting their territories.

^{Photo by Joe Catron. Sioux youth protest against Dakota Access Pipeline via Flickr CC-BY NC 2.0 DEED}

Lastly, the standards require the borrower to establish mechanisms to address and remedy any harm caused to Indigenous peoples' tenure rights, including by providing compensation or alternative means of livelihood.

Law and policy protecting Indigenous land rights in Africa

There are several laws and policies that recognize and protect the rights of Indigenous peoples in Africa. Some of these include:

• African Charter on Human and Peoples' Rights (ACHPR): This charter recognizes the rights of all peoples to enjoy their economic, social and cultural development. Article 21 of the charter specifically recognizes the rights of Indigenous peoples to their ancestral lands and resources.
• United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP): Although not specifically an African law, UNDRIP has been endorsed by the African Commission on Human and Peoples' Rights. It recognizes the rights of Indigenous peoples to self-determination, their traditional lands and resources, and their cultural heritage.
• Policy on Indigenous Peoples and Local Communities: This policy was adopted by the African Development Bank in 2014 and recognizes the rights of Indigenous peoples and local communities to their lands, natural resources, and cultural heritage.
•  National Constitutions: Many African countries have recognized the rights of Indigenous peoples in their national constitutions. For example, the Kenyan constitution recognizes the rights of all communities to own ancestral lands.
• San Peoples Bill of Rights: This policy was adopted by the South African government in 2004 and acknowledges the rights of the San to their ancestral lands, their cultural heritage, and their right to participate in the decision-making processes that affect their lives.
• Kenyan Community Land Act: This act recognizes and protects the customary land rights of Indigenous communities in Kenya, including the Maasai and other pastoralist groups.
• There are also reports which list some of the indigenous peoples in Africa²⁶. and which set standards for their identification and recognition²⁷.
• There are some laws and policies in place to recognize and protect the rights of Indigenous peoples in Africa. In 2011 The Republic of Congo became the first country in Africa to pass legislation to protect its Indigenous Peoples' rights²⁸. In 2022, the neighbouring Democratic Republic of the Congo also recognized the customary rights of its Indigenous population by adopting a new law on Indigenous Pygmy Peoples.
• Overall, more work needs to be done to effectively implement policies and laws to ensure that the rights of Indigenous peoples are respected and protected.

^{Photo by Julien Harneis. Displaced family of pygmies in Shasha DRC via Flickr CC-BY-NC 2.0} 

Laws protecting Indigenous and community land rights in Latin America

There are estimated to be several hundred Indigenous groupings in Latin and Central America which have varying levels of state recognition. The table below provides an indication of the diversity of Indigenous groupings, several of which extend across the boundaries of neighbouring nation states.

Given the ongoing shifts in international and national regulations, some Latin American countries have officially acknowledged Indigenous rights and provided a measure of judicial autonomy to Indigenous peoples.

Bolivia

• Bolivia has implemented several laws and policies to recognize and protect the land rights of Indigenous people, including the following: The 2009 Constitution of Bolivia recognizes the collective ownership of Indigenous territories and stipulates that Indigenous people have the right to participate in the management of natural resources in their territories.
• The 1996 Agrarian Reform Law provides for the recognition and titling of Indigenous lands, giving Indigenous people legal ownership of their territories.
• The 2016 Law of Mother Earth recognizes the rights of nature and declares that Indigenous peoples have the right to maintain and protect their territories and natural resources.
•  The 2010 Law on Consultation and Participation of Indigenous Peoples requires the government to consult with Indigenous communities before approving any projects that could affect their territories.

^{Photo by Pedro Szekely Aymar women, Bolivia via Flickr CC-BY-SA 2.0 DEED}

Ecuador 

• The Constitution of Ecuador recognizes the rights of Indigenous communities to their ancestral lands.
•  In 2022 the Constitutional Court made an important ruling which gave Indigenous communities more autonomy over their territory and a much stronger say over extractive projects affecting their lands. Indigenous communities must not only be consulted about extractive projects on or near their territory, but they must also give their consent to such projects³⁷. This follows legal action by an Indigenous community in the northern Amazon rain forest which sued three government ministries for selling mining concessions on their territory without consultation. Provincial judges at the time ruled in favour of the community and the rights of nature, overturning 52 mining concessions³⁸.

Guatemala

•  The Indigenous Peoples Law (Ley de los Pueblos Indígenas) is supposed to recognise and protect the land rights of Indigenous communities. However, Guatemala has been wracked by ongoing contestation against corruption and impunity.
• There are reports that Indigenous communities protesting against mining, oil palm plantations and encroachment by large landowning companies have faced violent evictions and have been forced to live under a state of emergency in certain areas³⁹.

Laws protecting Indigenous and community land rights in Oceania

Colonised by British settlers Australia and New Zealand have subsequently attempted to address the rights of Indigenous peoples with varying degrees of effectiveness and success.

In 2021 there were 984,000 Aboriginal and Torres Strait Islander people which represented 3.1% of the Australian population⁴⁰. As yet the rights of Aboriginal Peoples and Torres Strait Islanders are not explicitly recognised by the Australian Constitution. However, in June 2023 Australia’s parliament passed legislation to pave the way for a historic referendum on Aboriginal rights. Voters will decide if the Indigenous population gets a dedicated “voice” in national policymaking⁴¹.

There are existing laws and policies, including the Land Rights Act 1976, the Commonwealth Heritage Protection and Torres Strait Islander Act 1984 and the Native Title Act 1993 which provide some recognition of the cultural and historical significance of land for Indigenous people. These laws also enable traditional ownership and use of the land.

The Native Title Act 1993 specifically provides for the recognition and protection of native title rights and interests over land and water. It establishes processes for Indigenous groups to make claims for native title, which is a legal recognition of traditional ownership of their land. This allows them to negotiate agreements with the government and mining companies over land use and access rights.

There remain doubts about how effective these laws have been in protecting the land rights of Indigenous people. Some argue that these laws do not do enough to address the ongoing impact of colonization on Indigenous communities and their land, and that there are still significant social and legal obstacles preventing meaningful redress. These criticisms are countered by those who regard changes in the legal landscape as significant steps towards recognition and reconciliation, creating a framework for ongoing negotiations and agreements which better balance the rights of Indigenous groups, the government and other actors.

Aotearoa New Zealand

The Treaty of Waitangi, which was signed in 1840 between the Māori people and the British Crown, granted the Māori people certain rights over their lands, including the right of ownership and control. Over time, however, these rights were eroded by colonial policies, resulting in the loss of much Māori land. To address these historical injustices, a number of laws and policies have been put in place to protect Māori land rights in New Zealand. Currently the Indigenous peoples of Aotearoa represent 16.5% of the country’s population of 5 million people⁴².

^{Photo by Dave Ferguson Tears on the wall Whanganui wahine via Flickr CC-BY-ND 2.0 DEED}

One of the key pieces of legislation is the Treaty of Waitangi Act 1975, which established the Waitangi Tribunal to investigate and report on Māori grievances related to the Treaty of Waitangi. The tribunal has the power to recommend redress, including the return of land to Māori ownership.

Another important law is the Māori Land Act 1993, which governs the administration and management of Māori land. The act recognizes the special status of Māori land and provides for the protection and preservation of Māori land rights. It also establishes the Māori Land Court, which has the power to make decisions on matters relating to Māori land.

In addition to these laws, there are a number of government policies and initiatives aimed at supporting the protection of Māori land rights. For example, the Crown-Māori Relations portfolio was established in 2017 to strengthen the partnership between the Crown and Māori and to support the ongoing development of Māori land.

Overall, while there are different views on the effectiveness of these measures, their existence demonstrates a commitment on the part of the New Zealand government to recognize and protect Māori land rights.

Papua New Guinea

Like Australia and New Zealand Papua New Guinea also has a colonial history marked by a combination of British, German and Australian rule before attaining independence in 1975. Legislation passed since independence recognises customary tenure and provides mechanisms for registration of customary land rights to enhance security and protect against unauthorized alienation.

Law protecting Indigenous groups in North America and Europe

USA

The United States is home to over two million Native Americans, 565 federally recognized Indian tribes, and other Indigenous communities⁴³. While tribal sovereignty is recognised within the US Constitution⁴⁴, there is a long history of discriminatory treaties and legislation which marginalised Native Americans. In 1934 the Indian Reorganisation Act sought to advance ‘tribal self- governance’ and enabled the reclamation of land rights in certain limited circumstances. The 1975 Indian Self Determination and Education Assistance Act strengthened the development of tribal self-government.

The United States of America did not support the United Nations Declaration on the Rights of Indigenous Peoples which was adopted in September 2007. However, in 2011 US changed its position under President Obama, following a comprehensive review by federal government agencies and became a signatory to this Declaration.

Canada

Further north Canada has recognized the rights of First Nations peoples to their traditional lands through a variety of laws and policies. Some of the most important of these are:

• The Indian Act, which was originally passed in 1876, which governs the relationship between the Canadian government and First Nations people. The act includes provisions that protect Indigenous lands and resources and gives Indigenous communities the legal right to govern their own affairs. However, this Act vested the power to control land use and development on Indigenous lands in the federal government and non-Indigenous corporations.
• The Constitution Act of 1982 recognizes and affirms existing Aboriginal and treaty rights as part of Canada's constitutional framework. This act provides constitutional protection to the land rights of Indigenous peoples and recognizes that these rights are fundamental to their cultural identity.
• The Native Land Act of 1993 provides a framework for the resolution of land claims by Indigenous peoples. This act establishes a process for determining the validity of land claims and negotiating settlements with the federal government. There are concerns that the Act does not provide adequate compensation for the loss of Indigenous land, and that the process of negotiating settlements is highly bureaucratic and time-consuming.

Many First Nations people in Canada continue to face challenges in protecting their land rights. The effectiveness of existing laws and policies are widely questioned, with some arguing that they do not go far enough in addressing the complex issues surrounding Indigenous land rights.

European Union

In Europe, policies and laws that recognize and protect the rights of Roma and traveller communities include:

•  The Framework Convention for the Protection of National Minorities (FCNM) – This Convention obliges signatory countries to protect and promote the rights of national minorities, including Roma communities.
• The European Convention on Human Rights (ECHR) – This Convention protects the right to respect for private and family life, freedom of thought, conscience, and religion, freedom of expression, and freedom from discrimination.
• The EU Framework for National Roma Integration Strategies (NRIS) – This framework aims to improve the integration of Roma communities and promote their social inclusion in the EU Member States.

Overall, while there have been some positive steps taken to recognize and protect the rights of Roma and traveller communities across Europe, there is still much work to be done to address the issues and challenges that they continue to face.

Among the Nordic states the Saami Convention signed in 2011 between Norway, Sweden, Finland and Russia seeks to recognize and protect the rights of the Saami people, who are the predominant Indigenous people in these countries.

The convention is based on several international agreements and declarations, including the UN Declaration on the Rights of Indigenous Peoples. The convention provides a framework for the protection of Saami culture, language and traditional livelihoods, as well as their right to self-determination and participation in decision-making processes that affect their lives. It also recognizes the Saami people's right to land and natural resources, and their right to control the development of their territories.

The Nordic Saami Convention is the first such agreement in the world to recognize the Saami people's rights across national borders. It is an important step towards achieving greater recognition and protection of the rights of Indigenous peoples worldwide.

Laws protecting Indigenous groups in Asia and India

Bangladesh

There are some 54 Indigenous peoples speaking 35 languages which accounts for 1% of the population. However, the Bangladeshi state does not recognise the political, economic and land rights of Indigenous peoples. In 2022 the Ministry of Information instructed the media not to make use of the term ‘Indigenous’⁴⁵.

Cambodia

There are some 24 Indigenous peoples in Cambodia, but the total population remains small. Most of these peoples live in the highlands of north-eastern Cambodia. While Cambodia is a signatory to the 2007 UN Declaration and is party to numerous other agreements, Indigenous peoples are reported to face discrimination and displacement from their lands by mining, logging and agribusiness interests⁴⁶.

China

The Chinese government recognises 55 minority nationalities making up nearly 9% of the country’s total population. The law of the People's Republic of China on Regional National Autonomy is the basic law for the governance of minority nationalities in China. This enables the establishment of autonomous areas for nationalities which make up approximately 64% of China's total territory. However, there is widespread discrimination and arbitrary detention of Uyghur Muslim minorities which the Office of the UN High Commissioner for Human Rights has concluded may constitute crimes against humanity⁴⁷.

India

In India there are 705 ethnic groups which are recognised as Scheduled Tribes. Collectively these comprise over 100 million people, or 8.6% of the total population⁴⁸. According to IWGIA the laws aimed at protecting Indigenous peoples are flawed and poorly implemented. In particular, rights to land and forest reserves are being eroded in favour of private developers without informed consent.

Challenges and risks

While many recognise the valuable knowledge of Indigenous peoples and their role as guardians of nature, the 2023 edition of Indigenous World reveals a disturbing global picture of conservation efforts ignoring Indigenous peoples, their rights and knowledge⁴⁹. The UN Secretary General recently noted that

As a tragic paradox, in the race to address these global crises, many top-down initiatives, albeit well-meaning, have failed to engage Indigenous Peoples, obtain their Free, Prior and Informed Consent (FPIC), or safeguard their rights. This has had negative consequences for Indigenous Peoples, including mass evictions, violent attacks and threats, detentions and arrests and, at the very worst, killings.

National legal frameworks can also afford protection to the rights of Indigenous peoples, often incorporating international legal principles into domestic laws. Despite the promulgation of such laws, their implementation is often ineffective. Some argue that governments pay lip service to the rights of Indigenous peoples and communities, many of which continue to face threats to their land rights from mining and infrastructure development projects. There are concerns that existing laws and policies do not go far enough and that Indigenous people should have more control over their territories and resources. There is also debate about the impact of these laws on national economic development and the rights of non-Indigenous citizens.

Climate change

Initiatives to combat climate change have increasingly recognized the importance of respecting and protecting the land rights of Indigenous and local communities.

Many climate change initiatives acknowledge that the recognition of Indigenous and community land tenure is a key element in protecting the environment and mitigating climate change. This involves recognizing Indigenous and local people's rights to access and manage lands and resources in accordance with their traditional principles and customary laws.

There is increasing recognition of the need for meaningful engagement with Indigenous and local communities and the payment of compensation for the impacts of climate change. However, the global system of tradeable carbon credits which was ratified in conjunction with the 1997 Kyoto Protocol which came into operation in 2005 is facing increasing criticism. The premise is that industries looking to reduce their carbon footprint purchase “carbon credits” which permits them to release carbon in exchange for supporting conservation efforts in forests around the world⁵⁰. The aim is that these forests will continue to sequester carbon instead of being cut down and releasing their carbon into the atmosphere — and the emissions resulting from the carbon credit-purchasers’ own activities (airlines, the oil industry and mining etc) are, in theory, cancelled out. There is concern that this payment to protect or restore forests is often something that “neither comes, or does not last”⁵¹.

The IPCC has recognized the importance of Indigenous and community land rights in protecting natural resources and combating climate change. In its reports, the IPCC has highlighted the link between secure land tenure, sustainable land management, and climate change mitigation and adaptation.

The IPCC's Fifth Assessment Report recommends that policies and programs aimed at mitigating climate change should respect and protect the rights of Indigenous peoples and local communities, including their rights to land and resources. It further recommends that such policies should promote the participation of Indigenous peoples in decision-making processes related to climate change. The

IPCC has also recognized the important role that Indigenous and local knowledge can play in climate change adaptation and mitigation efforts. The IPCC's Special Report on Climate Change and Land highlights the importance of traditional knowledge and practices for sustainable land and resource management.

Overall, the IPCC has taken a rights-based approach to climate action, emphasizing the importance of respecting and promoting the rights of Indigenous peoples and local communities in efforts to protect natural resources and combat climate change.

Women’s land tenure

According to UN Women, less than 20 percent of the world's landholders are women. Women represent fewer than 5 percent of all agricultural landholders in North Africa and West Asia, while in sub-Saharan Africa they make up an average of 15 percent⁵².

Women do not only own less land but are also less likely to have legal documents as proof of their ownership. This is particularly problematic when investors and governments claim, lease, or buy land to set up plantations, mines, or infrastructure, for example.

As of now, only a few national governments have collected sex-disaggregated data in the land sector and if so, they have been oblivious to differentiating between landholders, landowners, and rights to manage or control economic output from their land⁵³.

The Indigenous women’s movement has been lobbying the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) to publish a specific recommendation on the rights of Indigenous women and girls. This initiative has spanned many fora after first gaining prominence in 2004, before the adoption of General Recommendation 39 by CEDAW in October 2022. This states that:

States are required under international law to delimit, demarcate, title and ensure security of title to Indigenous Peoples’ territories to prevent discrimination against Indigenous women and girls.

Recommendation 39 also proposes that:

States require the free, prior and informed consent of Indigenous women and girls before authorizing economic, development, extractive and climate mitigation and adaptation projects on their lands and territories and affecting their natural resources. It is recommended to design free, prior and informed consent protocols to guide these processes⁵⁴.

Land governance innovations

The Voluntary Guidelines⁵⁵. contain a specific section on “Indigenous peoples and other communities with customary tenure systems” that need to be interpreted consistently with international law, as enshrined in UNDRIP and Convention No. 169⁵⁶.

In 2009 IFAD approved a Policy on Engagement with Indigenous Peoples which includes promoting access to land territories and resources as core principles. In particular, FPIC (Free, Prior and Informed Consent) is a leading principle in working with Indigenous peoples, and it must be sought before any action is taken in areas that are home to Indigenous peoples.

Creating an enabling environment for Indigenous and tribal peoples towards accessing collective titles over their ancestral territories has been one of the cross-cutting activities of a range of IFAD-funded programmes, mainly in Asia and Latin America⁵⁷.

In Tanzania innovations include extending Certificates of Customary Right of Occupancy (CCROs), usually issued to individuals, to formalize groups’ rights over lands and resources, an opportunity that exists as a legal mechanism, but that had not yet been piloted with Indigenous peoples’ communities. This pilot initiative sought to better secure rights of Hadza hunter-gatherers and Datoga pastoralists and is reported to have been successful in reducing land-use conflicts between hunter-gatherers, pastoralists and their neighbouring communities⁵⁸.

Land governance innovations have highlighted how Indigenous peoples’ distinctive livelihoods and traditional ecological knowledge contribute significantly to low-carbon sustainable development, biodiversity conservation, and genetic diversity.

Many Indigenous people are nomadic pastoralists with unique insights in how to manage uncertainty and change. In our increasingly complex and uncertain world

Old certainties have disappeared, and expectations of stability, order and control are no longer tenable. This requires a very different approach centred on flexibility, improvisation and adaptability”⁵⁹.

The experience of Indigenous peoples and communities and their abilities to sustainably manage resources in fragile environments suggests that other approaches need to be considered. This includes asking questions about the persistent “urge to demarcate, register and control land” which “can be disastrous in pastoral areas, restricting movement and so undermining the very basis of pastoral production”⁶⁰. It also suggests that “hybridity, collective arrangements and continuous negotiation of resource use are central” to rethinking land access and resource management.⁶¹

Authorship

This issue page has been researched and written by Rick de Satgé. It has been reviewed by Dwayne Mamo, Documentation & Communications Manager of the International Working Group for Indigenous Affairs (IWGIA) – a global human rights organisation dedicated to promoting, protecting and defending Indigenous Peoples’ rights.

References

[1] RRI (2015). Who wons the world's land? A global baseline of formally recognized indigenous and community land rights. New York, Rights and Resources Initiative.

[2] Ibid.

[3] Ibid.

[4] ILO (2019). Implementing the ILO Indigenous and Tribal People's Convention No. 169: Towards an inclusive, sustainable and just future. Geneva, International Labour Organisation, CEDAW (2022). General recommendation No. 39 (2022) on the rights of Indigenous women and girls. CEDAW/C/GC/39, United Nations.

[5] Garnett, S. T., N. D. Burgess, J. E. Fa, Á. Fernández-Llamazares, Z. Molnár, C. J. Robinson, J. E. Watson, K. K. Zander, B. Austin and E. S. Brondizio (2018). "A spatial overview of the global importance of Indigenous lands for conservation." Nature Sustainability 1(7): 369-374.

[6] Ibid.P.370

[7] Ibid.

[8] UN Permanent Forum on Indigenous Issues. (2013). "Backgrounder: Indigenous Peoples in the African region." Retrieved 11 July, 2023, from https://www.un.org/esa/socdev/unpfii/documents/2013/Media/Fact%20Sheet_Africa_%20UNPFII-12.pdf.

[9] Wily, L. A. (2011). "‘The Law is to Blame’: The Vulnerable Status of Common Property Rights in Sub-Saharan Africa." Development and Change 42(3): 733-757. P.458

[10] Chimhowu, A. (2019). "The ‘new’ African customary land tenure. Characteristic, features and policy implications of a new paradigm." Land Use Policy 81: 897-903.

[11] Jayne, T. S., J. Chamberlin and D. D. Headey (2014). "Land pressures, the evolution of farming systems, and development strategies in Africa: A synthesis." Food policy 48: 1-17.

[12] Lawry, S. (2013). "In Sub-Saharan Africa, Time to Legally Recognize Customary Land Rights." LandLinks https://www.land-links.org/2013/08/in-sub-saharan-africa-time-to-legally-recognize-customary-land-rights/ 2023.

[13] Brittain, S., H. Tugendhat, H. Newing and E. Milner-Gulland (2021). "Conservation and the rights of Indigenous peoples and local communities: looking forwards." Oryx 55(5): 641-642.

[14] RRI (2015). Who owns the land in Asia? Formal recognition of community-based land rights. New York, Rights and Resources Initiative.

[15] RRI (2015). Who owns the land in Latin America? Factsheet, Rights and Resources Institute.

[16] World Bank (2015). Indigenous Latin America in the Twenty-First Century: The first decade, World Bank.

[17] Ibid.

[18] Ibid.

[19] Note that Native Americans are variously described as American Indians or Indigenous people.

[20] US Department of the Interior. (2017). "What is a Federal Indian Reservation?" Retrieved 14 July, 2023, from https://www.bia.gov/faqs/what-federal-indian-reservation.

[21] IWGIA. (2023). "The Indigenous World 2023: Sápmi." Retrieved 23 October, 2023, from https://www.iwgia.org/en/sapmi/5073-iw-2023-sapmi.html.

[22] EuroNews. (2019). "Who are Europe's indigenous peoples and what are their struggles? | EuroNews answers." Retrieved 14 July, 2023, from https://www.euronews.com/2019/08/09/who-are-europe-s-indigenous-peoples-and-what-are-their-struggles-euronews-answers.

[23] WWF, U.-W., SGP/ICCA-GSI, LM, and C. TNC, WCS, EP, ILC-S, CM, IUCN (2021). The State of Indigenous Peoples’ and Local Communities’ Lands and Territories: A technical review of the state of Indigenous Peoples’ and Local Communities’ lands, their contributions to global biodiversity conservation and ecosystem services, the pressures they face, and recommendations for actions. Gland, Switzerland.

[24] ILO (2019). Implementing the ILO Indigenous and Tribal People's Convention No. 169: Towards an inclusive, sustainable and just future. Geneva, International Labour Organisation.

[25] IGWIA (2023). Indigenous World 2023. 37th Edition. D. Mamo. Copenhagen, Denmark, The International Work Group for Indigenous Affairs (IWGIA).

[26] ACHPR and IWGIA (2006). Indigenous Peoples in Africa: The Forgotten Peoples. Banjul and Copenhagen, African Commission on Human and People's Rights and the International Work Group for Indigenous Affairs.

[27] African Commission on Human and People's Rights (2005). Report of the African Commission's Working Group of Experts on Indigenous Populations /Communities.

[28] Cultural Survival. (2011). "New Law to Protect Indigenous Peoples Rights' in the Congo." Retrieved 23 October, 2023, from https://www.culturalsurvival.org/news/new-law-protect-indigenous-peoples-rights-congo.

[29] IGWIA (2023). Indigenous World 2023. 37th Edition. D. Mamo. Copenhagen, Denmark, The International Work Group for Indigenous Affairs (IWGIA). P 301

[30] Ibid. P 308

[31] Ibid. P 316

[32] Ibid. P 324

[33] Ibid. P 337

[34] Ibid. P 345

[35] Ibid. P 378

[36] Ibid. P 397

[37] Brown, K. (2022). "Ecuador’s top court rules for stronger land rights for Indigenous communities." Retrieved 14 June, 2023, from https://news.mongabay.com/2022/02/ecuadors-top-court-rules-for-stronger-land-rights-for-indigenous-communities/. [38] Ibid.

[39] IGWIA (2023). Indigenous World 2023. 37th Edition. D. Mamo. Copenhagen, Denmark, The International Work Group for Indigenous Affairs (IWGIA). P 380

[40] Ibid. P 540

[41] Al Jazeera. (2023). "Australia sets stage for landmark Indigenous rights referendum." Retrieved 14 July, 2023, from https://www.aljazeera.com/news/2023/6/19/australia-sets-stage-for-landmark-indigenous-rights-referendum.

[42] IGWIA (2023). Indigenous World 2023. 37th Edition. D. Mamo. Copenhagen, Denmark, The International Work Group for Indigenous Affairs (IWGIA). P. 532

[43] US Department of State (2011). Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples. Washington DC.

[44] Maddison, S. (2016). Indigenous reconciliation in the US shows how sovereignty and constitutional recognition work together, The Conversation.

[45] IGWIA (2023). Indigenous World 2023. 37th Edition. D. Mamo. Copenhagen, Denmark, The International Work Group for Indigenous Affairs (IWGIA). P. 159

[46] Ibid.

[47] UN News (2022). China responsible for ‘serious human rights violation

s’ in Xinjiang province: UN human rights report, United Nations. [48] IGWIA (2023). Indigenous World 2023. 37th Edition. D. Mamo. Copenhagen, Denmark, The International Work Group for Indigenous Affairs (IWGIA). P 192

[49] Ibid.

[50] Mongabay. (2019). "Is REDD ready for its closeup? Reports vary." Retrieved 14 July, 2023, from https://news.mongabay.com/2019/06/is-redd-ready-for-its-closeup-reports-vary/.

[51] Song, L. (2019). "An Even More Inconvenient Truth: Why carbon credits for forest preservation may be worse than nothing." Retrieved 14 July, 2023, from https://features.propublica.org/brazil-carbon-offsets/inconvenient-truth-carbon-credits-dont-work-deforestation-redd-acre-cambodia/.

[52] UN Women. (2012). "Facts and Figures: Poverty and Hunger." Retrieved 14 July, 2023, from https://www.unwomen.org/en/news/in-focus/commission-on-the-status-of-women-2012/facts-and-figures#:~:text=Less%20than%2020%20percent%20of%20the%20world%27s%20landholders,they%20make%20up%20an%20average%20of%2015%20percent.

[53] Hennings, A. (2023). "What makes and breaks achieving women's tenure security." Retrieved 11 July, 2023, from https://landportal.org/data-story/2023/03/womens-tenure-security.

[54] CEDAW (2022). General recommendation No. 39 (2022) on the rights of Indigenous women and girls. CEDAW/C/GC/39, United Nations. 23/25

[55] FAO (2012) "Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security."

[56] IFAD (2019). Indigenous peoples' collective rights to lands, territories and natural resources: lessons from IFAD supported projects. Rome.

[57] Ibid. P 9

[58] Ibid. P 19

[59] Scoones, I. (2023). "Pastoralists are an asset to the world – and we have a lot to learn from them." Retrieved 14 June, 2023, from https://theconversation.com/pastoralists-are-an-asset-to-the-world-and-we-have-a-lot-to-learn-from-them-207766.

[60] Ibid.

[61] Ibid.

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