SECTION FIVE
SOCIAL, ECONOMIC AND PROPERTY RIGHTS
Article XVIII. Traditional forms of ownership and cultural survival. Rights to land, territories and resources
1. Indigenous peoples have the right to the legal recognition of their varied and specific forms and modalities of their control, ownership, use and enjoyment of territories and property.
2. Indigenous peoples have the right to the recognition of their property and ownership rights with respect to lands, territories and resources they have historically occupied, as well as to the use of those to which they have historically had access for their traditional activities and livelihood.
3. i) Subject to 3.ii.), where property and user rights of indigenous peoples arise from rights existing prior to the creation of those states, the states shall recognize the titles of indigenous peoples relative thereto as permanent, exclusive, inalienable, imprescriptible and indefeasible.
ii) Such titles may only be changed by mutual consent between the state and respective indigenous peoples when they have full knowledge and appreciation of the nature or attributes of such property.
iii) Nothing in 3.i.), shall be construed as limiting the right of indigenous peoples to attribute ownership within the community in accordance with their customs, traditions, uses and traditional practices, nor shall it affect any collective community rights over them.
4. Indigenous peoples have the right to an effective legal framework for the protection of their rights with respect to the natural resources on their lands, including the ability to use, manage, and conserve such resources; and with respect to traditional uses of their lands, interests in lands, and resources, such as subsistence.
5. In the event that ownership of the minerals or resources of the subsoil pertains to the state or that the state has rights over other resources on the lands, the governments must establish or maintain procedures for the participation of the peoples concerned in determining whether the interests of these people would be adversely affected and to what extent, before undertaking or authorizing any program for planning, prospecting or exploiting existing resources on their lands. The peoples concerned shall participate in the benefits of such activities, and shall receive compensation, on a basis not less favorable than the standard of international law for any loss which they may sustain as a result of such activities.
6. Unless exceptional and justified circumstances so warrant in the public interest, the states shall not transfer or relocate indigenous peoples without the free, genuine, public and informed consent of those peoples, but in all cases with prior compensation and prompt replacement of lands taken, which must be of similar or better quality and which must have the same legal status; and with guarantee of the right to return if the causes that gave rise to the displacement cease to exist.
7. Indigenous peoples have the right to the restitution of the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, occupied, used or damaged, or when restitution is not possible, the right to compensation on a basis not less favorable than the standard of international law.
8. The states shall take all measures, including the use of law enforcement mechanisms, to avert, prevent and punish, if applicable, any intrusion or use of those lands by unauthorized persons to take possession or make use of them. The states shall give maximum priority to the demarcation and recognition of properties and areas of indigenous use.
I. INTERNATIONAL AUTHORITIES AND PRECEDENTS
1. Draft United Nations Declaration on the Rights of Indigenous Peoples (UN 1994)
Article 10: "Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return."
Article 26: "Indigenous peoples have the right to own, develop, control and use the lands and territories, including the total environment of the lands, air, waters, coastal seas, seaice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used. This includes the right to the full recognition of their laws, traditions, and customs, landtenure systems and institutions for the development and management of resources, and the right to effective measures by States to prevent any interference with, alienation of or encroachment upon these rights."
Article 27: "Indigenous peoples have the right to the restitution of the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, occupied, used or damaged without their free and informed consent. Where this is not possible, they have the right to just and fair compensation. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status."
Article 28: "Indigenous peoples have the right to the conservation, restoration, and protection of the total environment and the productive capacity of their lands, territories and resources, as well as to assistance for this purpose from States and through international cooperation. Military activities shall not take place in the lands and territories of indigenous peoples, unless otherwise freely agreed upon by the peoples concerned."
States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands and territories of indigenous peoples.
States shall also take effective measures to ensure, as needed, that programs for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented."
2. C 169, Convention on Indigenous and Tribal People (ILO Convention 1989)
Article 13:
1. "In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.
2. The use of the term lands in Articles 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use."
Article 14:
1. "The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.
3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned."
Article 15:
1. "The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
2. In cases in which the State retains the ownership of mineral or subsurface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced before undertaking or permitting any programs for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities."
Article 16:
1. "Subject to the following paragraphs of this Article, the peoples concerned shall not be removed from the lands which they occupy.
2. Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned.
3. Whenever possible, these peoples shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist.
4. When such return is not possible, as determined by agreement or in the absence of such agreement, through appropriate procedures these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate warrantees.
5. Persons thus relocated shall be fully compensated for any resulting loss or injury."
Article 17:
1. "Procedures established by the peoples concerned for the transmission of land rights among members of these peoples shall be respected.�?
2. The peoples concerned shall be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own community.
3. Persons not belonging to these peoples shall be prevented from taking advantage of their customs or of lack of understanding of the laws on the part of their members to secure the ownership possession or use of land belonging to them."
Article 18: "Adequate penalties shall be established by law for unauthorized intrusion upon, or use of, the lands of the peoples concerned, and governments shall take measures to prevent such offences."
Article 19: "National agrarian programs shall secure to the peoples concerned treatment equivalent to that accorded to other sectors of the population with regard to: (a) the provision of more land for these peoples when they have not the area necessary for providing the essentials of a normal existence, or for any possible increase in their numbers; (b) the provision of the means required to promote the development of the lands which these peoples already possess."
3. American Convention on Human Rights (OAS 1969)
Article 21: “(1) Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. (2) No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the norms established by law. (3) Usury and any other form of exploitation of man by man shall be prohibited by law."
4. American Declaration on the Rights and Duties of Man (OAS 1948)
Article XXIII: "Every person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home."
5. International Convention on the Elimination of all Forms of Racial Discrimination (UN 1965)
Article 5: “...States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone. (d)(v) to own property alone as well as in association with others"
6. Universal Declaration of Human Rights (UN 1948)
Article 17(1): “Everyone has the right to own property alone as well as in association with others."
7. Committee on the Elimination of Racial Discrimination, General Recommendation XXIII (51) Concerning Indigenous Peoples (August 1997)
Para 4: "The Committee calls in particular upon States parties to:
d. ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent;"
Para 5: "The Committee especially calls upon States parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return these lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories."
8. African Charter on Human and Peoples’ Rights (Banjul Charter 1981)
Article 14: “The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.�?
Article 21(1-2): “All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.�?
9. Carta Internacional Americana de Garantías Sociales (1948)
Artículo 39: "Deben crearse instituciones o servicios para la protección de los indios, y en particular para hacer respetar sus tierras legalizar su posesión por los mismos y evitar la invasión de tales tierras por parte de extraños�?.
10. Human Rights Committee, General Comment No. 23(50)
Para. 7: "[C]ulture manifests itself in many forms, including a particular way of life associated with the use of land and resources, specially in the case of indigenous peoples. That right may include such traditional activities as fishing and hunting and the right to live in reserves protected by law."
11. Copenhagen Declaration on Social Development and Programme of Action of the World Summit for Social Development (Copenhagen, Denmark, March 6-12, 1995)
Annex II: Programme of Action of the World Summit for Social Development Content.
Chapter II. Eradication of Poverty.
Para. B(32): "Rural poverty should be addressed by: (f) Protecting, within the national context, the traditional rights to land and other resources of pastoralists, fishery workers and nomadic and indigenous people."
12. World Bank Operational Directive 4.20 (OD 4.20) (September 1991)
Para. 15(a): “Particular attention should be given to the rights of indigenous peoples to use and develop the lands that they occupy, to be protected against illegal intruders, and to have access to natural resources (such as forests, wildlife, and water) vital to their subsistence and reproduction.�?
Para. 15(c): “When local legislation needs strengthening, the Bank should offer to advise and assist the borrower in establishing legal recognition of the customary or traditional land tenure systems of indigenous peoples. Where the traditional lands of indigenous peoples have been brought by law into the domain of the state and where it is inappropriate to convert traditional rights into those of legal ownership, alternative arrangements should be implemented to grant long-term renewable rights of custodianship and use to indigenous peoples.�?
Para. 15(d): “Mechanisms should be devised and maintained for participation by the indigenous people in decision making through project planning, implementation, and evaluation.�?
13. Agenda 21: Programme of Action for Sustainable for Sustainable Development, Rio Declaration on Environment and Development. Statement of Principles. Final Text of Agreements Negotiated by Governments at UNCED Conference, June 1992, Rio de Janeiro, Brazil
26.4. "Some indigenous people and their communities may require, in accordance with national legislation, greater control over their lands, self-management of their resources, participation in development decisions affecting them, including, where appropriate, participation in the establishment or management of protected areas. The following are some of the specific measures which Governments could take:
(b) Adopt or strengthen appropriate policies and/or legal instruments that will protect indigenous intellectual and cultural property and the right to preserve customary and administrative systems and practices."
14. Western Sahara, 1975 ICJ 12, 37-39 (1975)
-Rejecting the invocation of the doctrine of terra nullis to extinguish the land rights of nomadic [indigenous] people in Western Sahara.
-Affirming that the doctrine of terra nullis clearly requires that the territory "belong[s] to no-one" (i.e. is actually uninhabited).
-Rejecting the invocation of the terra nullis doctrine to acquire original title through occupation of territories inhabited by "tribes or peoples having a social and political organization."
15. Ominayak, Chief of the Lubicon Lake Band v. Canada (Communication No. 167/1984, Report of the Human Rights Committee (1990)
The Human Rights Committee construed the cultural rights guarantees of article 27 of the International Covenant on Civil and Political Rights to extend to "economic and social activities" upon which the Lubicon Lake Band of Cree Indians relied as a group. Thus the committee found that Canada had violated its obligations under article 27 when it allowed the provincial government of Alberta to grant leases for oil and gas exploration and for timber development within the aboriginal territory of the Band. The committee acknowledged that the Band's survival as a distinct cultural community was bound up with the sustenance that it derived from the land.
16. Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Ecuador (1997)
-Observing that for indigenous peoples the "continued utilization of traditional systems for the control and use of territory are essential to their survival, as well as to their individual and collective well-being." The Commission also stated that "control over the land" includes the "capacity for providing the resources which sustain life," and "the geographical space necessary for the cultural and social reproduction" of indigenous peoples.
-"Given that the protection of the rights of indigenous individuals and communities affected by oil and other development activities requires that adequate protective measures be put in place before damage has been suffered, the Commission recommends that the State take the measures necessary through the INDA and other agencies to restrict settlers to areas which do not infringe upon the ability of indigenous peoples to preserve their traditional culture."
-"Certain indigenous peoples maintain special ties with their traditional lands, and a close dependence upon the natural resources provided therein - respect for which is essential to their physical and cultural survival."
17. Report on Human Rights of Indigenous Peoples: Indigenous People and their relationship to land (1999)
The Sub-Commission on Prevention of Discrimination and Protection of Minorities,
“Acknowledging that indigenous peoples in many countries have been deprived of their human rights and fundamental freedoms and that many of the human rights problems faced by indigenous are linked to the historical and continuing deprivation of ancestral rights over lands, territories and resources,
Recognizing the profound spiritual, cultural, social and economic relationship that indigenous people have to their total environment and the urgent need to respect and recognize the rights of indigenous people to their lands, territories and resources,
Acknowledging that lack of secure land rights, in addition to continued instability of State land tenure systems and impediments to efforts for the promotion and protection of indigenous communities and the environment, are imperiling the survival of indigenous peoples�?