C. Failure to demarcate
"... the greatest single problem today for indigenous peoples is the failure of States to demarcate indigenous lands... Purely abstract or legal recognition of indigenous lands, territories or resources can be practically meaningless unless the physical identity of the property is determined and marked.
"Where such laws [demarcation enforcement laws] are lacking or weak, problems arise because, not having demarcated indigenous land,the State cannot identify what is indigenous land and what is not. As a result there are conflicts with indigenous communities.
"An important case now before the Inter-American Court of Human Rights raises the
issues of States’ obligations to recognize and respect the lands, resources and territories of indigenous peoples, and States’ obligations to demarcate those lands and territories. The case is that of the Mayagna indigenous community of Awas Tingni against Nicaragua...
"The case before the Court asserts, among other things, that Nicaragua has a legal obligation to demarcate and respect the traditional lands of Awas Tingni by reason of article 21 of the American Convention on Human Rights (“Everyone has the right to the use and enjoyment of his property ...”) and article 27 of the International Covenant on Civil and Political Rights, which provides: “In those States where ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” Nicaragua is a party to both the Convention and the Covenant. It is argued, with considerable authority, that traditional indigenous land tenure systems and patterns of land use are an aspect of culture that is protected by article 27 of the Covenant. This case is the first to raise indigenous land rights issues and the obligations of States to respect these rights. The decision of the Inter-American Court may have a far-reaching impact in determining the present scope of international legal obligations to respect and demarcate indigenous lands and resources under the American Convention and the International Covenant on Civil and Political Rights."
D. Failure of States to enforce or implement laws protecting indigenous lands
"Some of the most grave situations, such as the massive invasion of Yanomami lands in
Brazil and the resulting deaths of thousands of Yanomami Indians, came about in large part because of the State’s failure to enforce existing laws. Even after demarcation of the Yanomami territory, the Government of Brazil has not devoted the resources necessary to prevent the illegal invasion of thousands of gold miners. Gold miners have recently been responsible in part for the unprecedented fires that have burned extensively within the Yanomami territory, destroying vast areas of forest and food crops. The fires caused widespread outbreaks of disease that resulted in the deaths of more than 100 Yanomami in 1998. In other situations, indigenous peoples find they cannot protect their rights to lands and resources because they do not have effective recourse to the courts or other legal remedies. In the worst situations, violence, intimidation and corruption prevent effective legal action by or on behalf of indigenous peoples. This was reported, for example, concerning efforts by Macuxi Indian communities in Brazil to protect their lands.
"As with other human rights, the poverty, geographical remoteness and cultural and linguistic differences of indigenous peoples create severe impediments to the protection of their land, territorial and resource rights."
E. Problems in regard to land claims and return of lands
"The long and painful history of the unjust and inhuman dispossession of indigenous peoples from their territories has resulted in many indigenous peoples having no land or resources or too little land and resources to sustain their communities and their cultures.
"A particular problem that has been repeatedly brought to the attention of the Commission on Human Rights and the Sub-Commission is the use or misuse of claim procedures to deprive indigenous peoples of their rights or their claimed rights to land and resources. Numerous such problems have been reported by indigenous peoples in many countries. The problems may be summarized as follows: in some cases, an unauthorized or mistaken claim is made to a court or administrative body that the State has taken or paid an unfairly low price for an area of land originally owned by an indigenous people, whereas in fact the land has not been taken but is still owned by the indigenous people. In other cases, the land has been taken but the indigenous
people concerned does not want compensation but return of the land. Fraudulent or mistaken claims are sometimes, in effect, encouraged by legal provisions that permit a lawyer to earn a fee of as much as 10 per cent of the money award recovered. When such claims are taken to conclusion and an award of compensation is made, the payment of the award effectively extinguishes the indigenous title to the land in question. This has occurred even in situations where the Indian nation or tribe is still in possession of the land. Thus, these 'claims' processes are depriving Indians of their lands.
"The problems created by fraudulent and improper claims are aggravated by the lack of
proper legal procedures in the claim process. Processes such as that of the now defunct Indian Claims Commission in the United States did not ensure that claimants had proper authority to act for the tribe concerned. Procedures did not give the tribes concerned proper notice or an opportunity to be heard. The above-mentioned Commission in more than one case permitted lawyers to act in direct opposition to their supposed or nominal client tribes and even permitted lawyers to carry on money compensation claims after the claimant tribes had dismissed the lawyers in an effort to stop the claims.
"Although the Indian Claims Commission no longer exists, the cases that it handled and the problems it created continue. Some notable cases that remain unresolved are the Black Hills claim (in which the Sioux tribes have refused to accept the compensation awarded and seek a return of portions of the land) and the Western Shoshone case (in which the Western Shoshone tribes also refuse payment and seek a restoration of some of the land). In the latter case, some Western Shoshones have remained in possession of certain areas of the land supposedly taken by the United States and are resisting government efforts to interfere with their use of the land. The extensive and disruptive problems relating to the Indian Claims Commission have been given scholarly attention. These problems have also been the subject of complaints to the
United Nations and other bodies.
"Many of the problems discussed in the preceding paragraphs have been raised in a formal human rights complaint filed with the Inter-American Commission on Human Rights of the Organization of American States by two Western Shoshone Indian women on behalf of their Band. They assert that they are and have always been in possession of parts of the territory of the Western Shoshone Nation, an area recognized by the United States in the Treaty of Ruby Valley of 1863. They use the land for ranching, for religious purposes, for hunting and gathering, and other purposes. The United States claims that it now owns nearly all the land at
issue and that the Western Shoshone rights to the land were extinguished by the Indian Claims Commission process more than 15 years ago. The United States claims that these Western Shoshones are trespassing on the land, and the United States has taken various measures to
remove them and their livestock. In recent years, the discovery of one of the largest gold ore bodies in North America on this land has led to even greater pressure on these Western Shoshone people, who oppose open-pit gold mining.
"The complaint asserts that the United States has never lawfully extinguished the Western Shoshone title and that the Indian Claims Commission process was discriminatory and lacking in due process of law. The principal allegations are summarized as follows.
- It is alleged that the attorneys prosecuting the claim falsely stated and agreed that the land had been taken and Western Shoshone title extinguished long ago, when in fact it had not.
- The lawyers were permitted by the Commission to represent all Western Shoshones when in fact they did not.
- The Commission refused to permit any other Western Shoshone tribe or group to object or to be heard in the proceeding.
- The Commission entered its award, although by then not a single Western Shoshone tribe approved of the claim.
- The United States Government encouraged and participated in the proceedings throughout.
- The Claims Commission award amounted to about $0.15 per acre for the land supposedly taken.
- The United States asserts that the complaint is inadmissible on various procedural grounds and on the ground that the facts do not constitute human rights violations.
- The Inter-American Commission issued precautionary measures against the United States, requesting that the Government stay its actions against the complainants pending a full investigation of the case by the Commission. Later that same year, the Inter-American Commission declared the Danns’ case admissible, finding that the Danns had
met all procedural requirements and had raised a prima facie violation of their human rights.
"It is apparent from the proceedings in this matter that the United States has ostensibly extinguished the rights of Western Shoshone Indians to a large area of their ancestral land without according the ordinary rights of due process of law and fair market compensation that
would have been accorded to non-Indian landowners. This is the more notable because the land at issue had been recognized as Western Shoshone land by the United States in a treaty it signed with the Western Shoshones in 1863. The Indian Claims Commission process appears to have been lacking in fundamental fairness in many respects, particularly the failure to assure proper representation of the supposed claimants, the lack of notice and opportunity to be heard for other Western Shoshone parties, the failure to require proof of the supposed taking of the land, and the award of just a few cents per acre for the land at issue. The Claims Commission process in this case, and reportedly in other cases as well, appears to violate the fundamental requirements of non-discrimination and equality before the law. In all events, this case seems to demonstrate that for any claim process to be effective in resolving indigenous land rights issues it must be fundamentally fair.
"The central legal problem in this case appears to be the doctrine, which has been discussed above... that the State can extinguish Indian or indigenous land rights without due process of law and without fair market compensation. This frankly discriminatory doctrine should be rejected by the United States, and by all countries where it is found, as a violation of existing human rights standards requiring equality before the law.
"There have also been complaints about land claim mechanisms in other countries. In
Canada, the process has been reported to be extremely time consuming. In New Zealand, anger has been expressed over allegedly unauthorized settlements of claims. In Australia, the provisions of the 1993 Native Title Act were drastically changed in 1998 to make native title claims significantly more difficult, particularly by providing a substantially higher threshold test for the registration of claims. These provisions have been found racially discriminatory."
F. Expropriation of indigenous lands for national interests, including development
"The legacy of colonialism is probably most acute in the area of expropriation of indigenous lands, territories and resources for national economic and development interests. In every part of the globe, indigenous peoples are being impeded from proceeding with their own forms of development consistent with their own values, perspectives and interests.
The notion of development can be linked directly to the affirmation of “permanent sovereignty over natural resources” and the rights of States to “freely utilize and exploit” their natural resources. Of particular relevance in this context is the State assertion that it has complete rights to subsurface resources. This view has had numerous unfortunate social, economic,
environmental and cultural consequences. This is especially true in the case of the world’s indigenous peoples, who have until recently perceived development as a very negative concept. Much large-scale economic and industrial development has taken place without recognition of and respect for indigenous peoples’ rights to lands, territories and resources. Economic development has been largely imposed from outside, with complete disregard for the right of indigenous peoples to participate in the control, implementation and benefits of development.
"For years, non-governmental organizations have been saying that indigenous peoples have been deprived of much or all of their land and that it has been turned over to commercial use or for development projects. In addition, development projects designed to benefit or which affect indigenous peoples have been carried out without the peoples concerned being consulted.
"The Working Group on Indigenous Populations has also been informed of development projects and activities that were initiated with international assistance and without the involvement, consent or consultation of indigenous peoples. Examples include State initiatives to build roads and highways with the financial assistance of the Inter-American Development Bank, and the World Bank’s support for the building of dams in India and elsewhere. Other projects include the construction of dams that flood lands and terminate traditional economic practices of indigenous peoples, deforestation and gold-mining projects. National economic development schemes not only dispossess indigenous peoples of their lands, but also convert indigenous peoples into cheap labourers for industry, because the exploitation of their lands and the environmental degradation have deprived them of their livelihood.
"Even in areas where economic development has resulted in the transfer of lands to
indigenous communities, they have been unable fully to control such development. Specific examples include the Alaska Native Claims Settlement Act of 1971 and the James Bay and Northern Quebec Agreement of 1975.
Oil and gas exploration and exploitation, geothermal energy development, mining, dam
construction, logging, agriculture, ranching and other forms of economic activity ostensibly in the national interest have had an adverse impact both on indigenous peoples who have already suffered from contact and colonialism, and on indigenous peoples in areas long isolated.
Often, development takes place without indigenous peoples’ consent, consultation, participation or benefit.
To be continued...
Colleen
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