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Indigenous peoples and communal tenures in Asia

Marcus Colchester
Director, Forest Peoples Programme, Moreton-in-Marsh, Gloucestershire, United Kingdom.

In the past, Asian governments have argued strongly that the concept of indigenous peoples does not apply to the continent. However, as the term has gained currency and the legal implications have become better understood, this argument has weakened. Collective land rights are now recognized in some Asian states, usually on the basis of immemorial possession. In the Pacific islands and the Philippines, customary land rights are considered to confer rights equivalent to ownership, but in Indonesia and Malaysia customary tenures are considered to confer weaker rights similar to usufructs. Because land and natural resources are considered alienable, communal tenures in Asia have been prone to mismanagement, owing to a lack of clarity regarding who makes decisions in the name of the larger group. Paradoxically, Asian countries have gone much further than most African and Latin America countries in promoting collaborative natural resource management regimes, but these have rarely conferred strong tenure rights on communities.

INTRODUCTION

Stretching from the Urals and the Bosphorus in the west to Papua New Guinea in the east, the Asian continent contains a vast diversity of “indigenous peoples”. This article can only touch on some of the salient issues that arise in the region. It omits detailed consideration of indigenous peoples in the Near East and Central Asian Republics, although legal and administrative provisions for “tribal” self-government and relatively autonomous systems of land administration are prevalent in countries such as Iran, Pakistan and many Arab countries. Likewise, this article mentions only cursorily those indigenous peoples in China and Indochina.

DEFINITIONS

In the past, Asian governments have been the most outspoken in denying that the concept of “indigenous peoples” as used by the United Nations (UN) applies to their countries, with such statements being recorded at the Working Group on Indigenous Populations by delegates from Bangladesh, China, India, Indonesia, Japan and Malaysia. Some governments, such as that of Bangladesh, which have protested to the United Nations that the term “indigenous” has no place in their national context, have been wrong-footed when indigenous peoples have pointed out that the term “indigenous” is already used in national laws. A landmark case in Japan, decided on 28 March 1997 in a local court in Sapporo, recognized the Ainu as an indigenous and minority people (cf. Siddle, 1996).

Nevertheless, exemplifying the view of many Asian countries, the Chinese Government continues to deny that the concept of “indigenous peoples” applies to their national situation, arguing that the term only applies to those peoples who have been dispossessed of their ancestral homes by European colonial policies (Kingsbury, 1995). The statement, which is designed to deny the right to self-determination to China’s “minority nationalities”, conveniently ignores the fact that in its early years the Chinese Communist Party itself had explicitly recognized exactly this right (Grunfield, 1987: p. 228; Mackerras, 1994; Shakya, 1999). A 1998 report by Cuban Special Rapporteur, Alfonso Martinez, presented to the Working Group on Indigenous Populations of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities also argued that the term “indigenous peoples” does not apply in Africa and Asia, but only in countries that have suffered European colonization and where the settlers have remained to become the politically dominant population (Alfonso Martinez, 1999). However, the African Commission on Human and Peoples’ Rights of the Organisation of African Unity has ignored this suggestion and set up a Working Group on Indigenous Peoples and Communities in 2000.

Moreover, other Asian governments, such as that of the Philippines, have readily accepted that the international legal concept of “indigenous” does apply to their own politically marginalized ethnic groups, which are now officially referred to as “indigenous peoples” or “indigenous cultural communities”. In Nepal, too, the term indigenous is commonly applied to the distinctive ethnic groups in the Terai by forestry officials. In recognition that there are indigenous peoples in Nepal, in 1993 the national government formed a National Committee on the International Year of Indigenous Peoples. In mid-1999, the Nepalese Government explicitly recognized the existence of 61 indigenous peoples in Nepal, who make up some 60 percent of the population (and see Tamang, 1996).

In Indonesia, too, the reformist governments of the post-Suharto era have accepted that the term “indigenous peoples” applies to masyarakat adat, groups who claim collective land rights under customary law (Colchester, Sirait and Wijardjo, 2003). The Cambodian legislature has likewise discussed the rights of indigenous peoples in Ratanakiri in the northeast. In 1998, the Asian Development Bank (ADB) adopted a policy on indigenous peoples very similar to the World Bank’s 1992 policy. The ADB policy calls for a strong commitment to recognize the sociocultural rights of indigenous peoples. Development interventions, it argues, should be compatible in substance and structure with the affected people’s culture and socio-economic institutions. The ADB calls for a poverty alleviation approach that addresses “intangibles such as feelings of powerlessness and lack of freedom to participate”.

In short, once it is accepted that the situation of “indigenous peoples” cannot be considered independently of national contexts and histories, the term “indigenous peoples” will gain increasing acceptance in Asia. It is widely used by self-identified peoples throughout the region (Nicholas, 1989; Nicholas and Singh, 1996).

FORMS OF TENURE, EQUITY AND LEGAL PERSONALITY

Generalizing about trends in the administration of indigenous lands over such a vast area is problematic. By and large, Asian countries have been reluctant to admit collective forms of land ownership or possession, preferring instead to promote individual land titling according to the Torrens system, thereby undermining traditional economies (e.g. Brewer, 1988). Even in communist countries, the denial of land rights to indigenous peoples has often led them into abject poverty, obliging them to live outside the law in order to make a living (Jager, 2001). However, where governments recognize indigenous collective tenures, these rights have in almost all cases been recognized on the basis of immemorial possession or customary use.

Two broad tendencies can be identified. In one set of countries, such as most of the Pacific islands (Lundsgaarde, 1974; Crocombe, 1987, 1994; Van Trease, 1987; Crocombe and Meleisea, 1994; Damas, 1994) and, recently, the Philippines, the laws recognize indigenous collective tenures as providing the equivalent of strong rights of ownership. In other countries, such as Indonesia and Malaysia, the laws grant what administrators understand to be much more limited usufructory or possessory rights, considered to be much weaker than full ownership. As noted below, these interpretations are now being contested in the courts and indigenous spokespeople have argued that the downgrading of indigenous property rights in comparison with those of other citizens constitutes a violation of the International Convention on the Elimination of All Forms of Racial Discrimination.

In contrast to Latin America, where most collective tenures are deemed inalienable, and although in India and Bangladesh administrative measures exist (on paper) to prevent the sale of tribal lands to nontribals, in general most collective tenures in Asia allow land sales and other transfers of rights. Land markets and markets in timber are thus prevalent in indigenous areas but, contrary to the expectations of those who have favoured land markets as an engine for “development”, there is widespread evidence that land and resource mobilization have actually increased poverty, landlessness and environmental damage in indigenous areas (e.g. India: Von Furer-Haimendorf, 1982; Viegas, 1991; Bangladesh: Colchester, 1984; Indonesia: Simbolon, 1999; general: Colchester, 1992; Colchester and Lohmann, 1993).

The provision of alienable collective tenures presents particular challenges. If lands, and/or resources on these lands, can be sold or negotiated with outsiders not bound by customary laws, then legal clarity on just who has the right to enter into such contracts becomes essential. Unfortunately, legal imprecisions regarding in which indigenous institutions lands are vested and, thus, who has legal personality in negotiating contracts are widespread and have prompted the emergence of entrepreneurial indigenous elites who have profited at the expense of the wider group. This has exacerbated the process of impoverishment in indigenous areas (Colchester, 2001).

THE ISSUE OF SHIFTING CULTIVATION

South and southeast Asia are remarkable in the extent to which widespread prejudices against the practice of shifting cultivation have been used as a basis for denying indigenous rights. The prejudice has deep roots, dating back to precolonial times, but was considerably reinforced in the colonial era with the introduction of “scientific forestry” (Ghurye, 1980; Dove, 1985; Colchester, 1990; Bryant, 1994). The need to “eradicate” shifting cultivation has since been used to justify the forced resettlement of indigenous peoples throughout the region, including in Bangladesh, Burma, Cambodia, India, Indonesia, Lao People’s Democratic Republic, Malaysia, the Philippines, Thailand and Viet Nam (Evans, 1995; Thrupp et al., 1997). The result has only been to fuel land conflicts, increase poverty and open up forests to competing interests, which have been no less reckless in their use of resources. A detailed reappraisal of shifting cultivation is outside the scope of this article but it needs to be recognized that national policies towards indigenous land rights and those towards shifting cultivation and forest management are intimately related. They need to be addressed together.

GENDER ISSUES AND INDIGENOUS TENURE IN ASIA

Customary forms of land ownership in many parts of Asia have recognized women as having equal rights to land as men and in some areas matrilineal inheritance is common. However, many interventions in indigenous peoples’ lives have not dealt with men and women even-handedly. Processes such as the introduction of individualized land holding in indigenous areas, forced resettlement, compensation, registration of heads of households for taxation or benefit-sharing purposes, and the provision of jobs in extractive industries have all tended to select males over females. The result has been a marked erosion of indigenous women’s rights and resulting poverty and loss of status (Kelvar and Dev, 1991; Wickramasinghe, 1994; Heyzer, 1996; Griffen, 2001).

COMMUNITY-BASED NATURAL RESOURCE MANAGEMENT

Notwithstanding the widespread reluctance of many Asian governments to recognize and regularize indigenous land rights, Asian countries have gone further than many in promoting various forms of community-based watershed, forest and fisheries management. Pilot experiments in community-based wildlife and protected area management have also been tried, with sufficient success to encourage their more widespread application.

Reviews of these experiences reveal a continuing reluctance of state officials to relinquish authority over resources to local users, even though the most successful examples of community-based natural resource management in the region are those that have transferred rights to local communities, built on customary institutions and given scope for indigenous peoples’ knowledge and traditional skills. Recognition of rights of tenure in community-based natural resource management regimes is now being increasingly strongly advocated but is still widely resisted by forestry and fishery departments (Poffenberger, 1990; Colchester, 1992, 2000; Lynch, 1992; Hobley, 1996; Apte and Kothari, 2000; Colchester and Erni, 1999; Kothari, Pathak and Vania, 2000; Kalpavriksh, 2000; Sarin, 2001).

India

Adivasi (“aboriginal people”) are estimated to make up some 7 percent of the population of India. These 70 million people speak some 200 distinct languages and are concentrated in the “tribal belt” of central India, with a second concentration in the northeast. These areas also contain the majority of the remaining primary forests of the country. Historically treated as exotic beings outside the caste system and Hindu pollution laws, they continue to suffer severe discrimination and socio-economic marginalization. British efforts to abolish village autonomy and introduce zamindari (tax-gathering landlords) into tribal areas in the eighteenth and early nineteenth centuries led to tribal rebellions in West Bengal, Bihar and Jharkhand. The British responded by removing zamindari and passing Land Settlements aimed at securing tribal tenure in these areas.

The 1901 Land Revenue Code similarly prevented the sale of tribal land without permission of the Collector. Later, the administration classified most adivasi as “Schedule Tribes” and established “Scheduled Areas” to protect them from incursions. Land outside these “areas” was alienable. The policy continued after independence coupled with measures towards positive discrimination. Two separate “Schedules” were elaborated: the 5th Schedule for tribes in Peninsular India and the 6th Schedule for tribes in the northeast. A number of higher educational places and positions in the legislatures are reserved for adivasi in proportion to their numbers in each state. Although India has also ratified the International Labour Organization’s (ILO) Convention 107, which recognizes adivasi rights to the collective ownership of their traditional lands, no legal measures have been taken to promote collective titling in Peninsular India.

In the mid-nineteenth century, the British reclassified large areas of India as “forests” subject to new Forest Acts and under the control of Forest Departments. “Forests” now encompass some 22 percent of the country and include the traditional lands of millions of tribal people. Nineteenth century British administrators argued about whether to recognize tribal peoples as having “rights” or “privileges” in forests. The later Forest Acts recognized only privileges and subsequent regulations and administrative decisions progressively eroded these privileges - effectively rendering these people landless. Since independence, an estimated 600 000 tribal people have also been displaced by protected areas. Recent programmes of the Joint Forest Management do not modify tenure and have been criticized for further impoverishing adivasi.

In central India, British administration promoted registers of individual land title (patta), with all other lands being considered “wastelands” and thus crown lands. Collective land ownership was not recognized, except in Chota Nagpur, and “wasteful” forms of land use - such as hunting and shifting cultivation - were not considered a basis for land ownership. Since independence, protection of tribal farmlands has been limited to “Scheduled Areas” and only unevenly extended to other tribal landholdings. Market pressures, usury, bureaucratic obstacles and lack of education have combined to deprive many tribal peoples of their lands. Benami transfers - in which lands are informally passed to non-tribals by indebted tribals have effectively alienated much land even in protected blocks. The 1996 Panchayats (Extension to Scheduled Areas) Act now recognizes “tribal self-rule” at the local level, giving greater authority to adivasi themselves to control future land transfers. The Act does not provide for recognition of common property regimes, however.

In northeast India, where formal systems of administration were extended only towards the end of British rule and then only lightly and indirectly, the 6th Schedule recognizes Autonomous District Councils, gives them authority over land and recognizes collective land ownership. Similar provisions have been applied in Nagaland and Mizoram where the 6th Schedule does not apply. Most of these institutions can be seen as modified versions of earlier customary governance systems, with modified leadership systems such that heritable chieftainships have been made subject to election by assemblies of all adult males. Women, however, are excluded from participation in such assemblies. Customary laws are respected within the jurisdictions of these councils and relatively small areas in these states are subject to the Forest Acts. Legal imprecisions regarding who has legal personality together with vigorous land and timber markets have led to rapid deforestation, rising concern about soil erosion, the emergence of village elites and growing social inequalities. Increasingly, communal lands are being claimed and held by individual families and some are using the land laws to register private titles. Intracommunity land conflicts are now becoming a problem (Ghurye, 1980; Moser, 1972; Fuchs, 1973; Morris, 1982; Von Furer-Haimendorf, 1982; Sharma, 1990; Viegas, 1991; Fernandes, 1992; Bhanage, 1993; Mahapatra, 1994; Rao, 1994; Lynch and Talbott, 1995; Erni, 1996; Poffenberger and McGean, 1996; Joshi, 1998; Griffiths and Colchester, 2000).

Thailand

There are an estimated 700 000[1] members of so-called chao khao (“hill tribes”) in Thailand, distributed in some 20 provinces, mainly in the upland areas in the north of the country. The government officially recognizes nine ethnic groups as hill tribes subject to its “tribal welfare” policy. Two other ethnic groups, the Mrabri and Palaung, are also treated as “hill tribes” by government researchers, who actually count as many as 23 tribal groups in Thailand. Some of these ethnic groups have been in the region now known as Thailand longer than the majority Thais. Other groups have migrated into the region more recently, some prior to and others since the incorporation of the northern provinces into the modern Kingdom of Thailand.

Prior to 1959, the hill tribes enjoyed considerable autonomy and were administered by local principalities through indirect rule, leaving scope for traditional leaders to exercise their authority and for land and natural resources to be managed in accordance with customary law. However, since 1959, the state has sought to sedentarize tribal villages and integrate them into the national mainstream with the aims of curbing rotational farming, halting cultivation of the opium poppy and promoting national security. Whereas the armed forces and Royal Forestry Department (RFD) have preferred a policy of forced resettlement, the King has personally promoted a programme of sedentarizing and developing tribal villages in the uplands, in combination with crop substitution and marketing projects, in which opium poppies have been replaced as cash cops with vegetables and wild flowers. Financial support has come from the World Bank, UN agencies and bilateral donors. Although donor agencies admit that regularizing tenure is necessary to make these projects sustainable, no concerted effort to overcome government resistance to providing tenure to “hill tribes” has been made.

Property rights, including possessory rights, are protected by the Thai Constitution. However, the land laws of Thailand do not make provisions for collective land ownership and indeed lowland peasants encounter many difficulties securing even individual rights to land. Hill tribes face particular obstacles to regularizing tenure. First, all land above 600 m is designated as Crown Land and is administered as Royal Forest by the RFD. Second, many members of the hill tribes lack citizenship papers and have difficulties obtaining them because they lack birth certificates and owing to discriminatory behaviour by public officials. Without identification cards they are denied the normal rights and protections of Thai citizens. As pressure on land has increased as a result of population increase, expansion of commercial farming and plantations, and migration of lowland Thais into the northern provinces, members of the hill tribes have faced increasing landlessness and poverty. Land security is vital to communities trying to break out of this downward spiral.

Since the mid-1990s, hill tribes’ organizations have allied with peasant groups and social justice non-governmental organizations (NGOs) to press for usufructory rights to use, manage and control community forests in the uplands. However, a Community Forestry Act adopted in 1997 was fiercely denounced by national conservation groups before it could be applied. The “green NGOs” instigated riots and violent protests by lowland farmers in order to limit application of the law in upland forests. Consequently, the law was amended in June 1998 to prevent the recognition of communal forests in areas zoned as watershed protection and priority conservation zones. The movement for a recognition of communal forests and a revalidation of rotational farming continues but meanwhile conflicts between lowlanders and hill tribes have become more bitter (McKinnon and Bhruksasri, 1986; Tapp, 1986; Von Geusau, 1986; McKinnon and Vienne, 1989; Colchester, 2000; Colchester and Lohmann, 1990, 1993; Lynch and Talbott, 1995; Carrere and Lohmann, 1996; Nicholas and Singh, 1996; Hirsch, 1997; Poffenberger, 2000).

Indonesia

According to official government figures, between 1.2 and 6 million people are classified as suku suku terasing (isolated and alien tribes) or masyrakat terasing (isolated and alien people) by the Department of Social Affairs (Depsos) and the Department of Agriculture. These groups are officially considered to be “underdeveloped” and in need of “modernization” and have been the subjects of programmes of forced resettlement, reeducation and the extirpation of so-called backward cultural practices - including the torching of longhouses, the burning of ceremonial goods and the banning of communal rituals. Although the more brutal aspects of this programme ceased with the ending of the Suharto dictatorship, the government has yet to revise its underlying assimilationist policy. Since the fall of Suharto, a vigorous social movement has emerged claiming to represent some 60 - 120 million Indonesians who consider themselves to be masyrakat adat (people governed by custom) and who refer to themselves as “indigenous peoples” in international discourse. These are the speakers of most of the 600 languages in the country. They claim rights to the collective ownership of their lands, a form of tenure ambiguously recognized in Indonesian law.

The concept of adat (custom) as a unifying marker of Indonesian identity provided a powerful rallying point in the struggle for Indonesian independence. Accordingly, the 1945 Constitution recognizes adat and, somewhat rhetorically, establishes it as the basis for national law, thus abandoning the legal dualism that had been practised by the Dutch. Notwithstanding, during the 1950s and 1960s, adat courts and other adat legal procedures were progressively abolished and a body of “positive law” (hukum positif) evolved to replace it. In the same way, although the Basic Agrarian Law (BAL) of 1960 apparently makes provision for the recognition of customary rights to land as usufructs (hak ulayat), the law has been interpreted and applied in ways that deny collective land rights. Recent assessments under the World Bank Land Administration Project show that the government entirely lacks the capacity to recognize or administer collective tenures.

Further limitations on customary land ownership were imposed by the 1970 Forestry Act, by which some 70 percent of the national territory was handed over to the jurisdiction of the Forestry Department and treated as state-owned lands. In practice, procedures for consultation with resident communities prior to the delineation of state forests were often omitted. In effect, if not in law, the Forest Act extinguished the rights of some 30 - 60 million people. Indigenous institutions were further eroded by the Village Government Act of 1979, which imposed a single model of local government, based on Javanese administrative traditions, on the whole country. The result was that adat systems of self-government were denied and lost legal standing.

Since the fall of Suharto, a period of legal and institutional reform has begun. The 1999 Human Rights Act provides for the protection and recognition of adat communities, including ulayat land. Authority over land and forest issues has passed to the district administrations and a new Local Government Act of 1999 - which has yet to be widely applied - provides a legal basis for the re-empowerment of adat institutions. However, a revised Forestry Act, widely expected to recognize community rights in forests, disappointed many by only recognizing the possibility of cooperatives securing forestry concessions. A decree from the Agrarian Ministry does now admit the possibility of collective usufructs, and district-level decrees (perda) have begun to recognize a diverse range of community forest tenures. Many lawyers argue that a fundamental revision of the BAL is necessary before collective tenures can be legally secured. A 2001 national assembly legislative act stipulating the need for revision of tenure laws has yet to be implemented (Ter Haar, 1948; Hooker, 1978; Holleman, 1981; Colchester, 1986a, 1986b, 2001; Barber and Churchill, 1987; Brewer, 1988; Burns, 1989; Lynch and Talbott, 1995; Murray Li, 1999; van Meijl and von Benda-Beckmann, 1999; Eghenter, 2000; Fay, Sirait and Kusworo, 2000; Lev, 2000; Colchester, Sirait and Wijardjo, 2003).

Malaysia

Malaysia has a Federal System in which land and forest issues fall under the jurisdiction of state authorities. Although a single Constitution applies to the whole Federation and recognizes custom and customary law, the indigenous situation and the related legislation is best understood in three parts - Peninsular Malaysia, Sabah and Sarawak.

Peninsular Malaysia

There are some 100 000 aboriginal people (orang asli) from 18 different ethnic groups in Peninsular Malaysia, the descendants of hunter-gatherers who have inhabited the interior forests for millennia. Under the British colonial administration, these peoples were confined to “Reserves”, which were considered to be crown lands temporarily set aside for the communities but which could be annulled at the stroke of a pen. Both the legislation and this interpretation of the law were adopted almost without modification by Malaysia at independence. Reserves encompass only 15 percent of the settled village areas occupied by orang asli, leaving the remainder with even less land security and no secure rights in their wider territories. During the 1950s and 1960s, many of the widely dispersed orang asli communities were forcibly relocated into larger, supervised settlements as part of a counter-insurgency programme and this has continued as part of a national policy of integration. A 1961 policy to seek indigenous peoples’ consent prior to resettlement has not been adhered to strictly. Orang asli have since suffered an almost continuous erosion of their land base as a result of logging, road-building, resort development, hydropower projects, and the extension of plantations and protected areas. A 1997 court case in Johor, by orang asli who had been dispossessed to make way for a dam, effectively challenged the administration’s interpretation of the law and upheld the principle of aboriginal rights as unextinguished traditional rights of occupation and use. The judgment was upheld on appeal. Since then, other orang asli have filed further suits arguing for recognition of the principle of aboriginal title.

Sabah

In Sabah, there are some 1 350 000 indigenous people drawn from 39 indigenous groups, referred to collectively as Dusun and Kadazan. Partly as a result of a long history of colonially and then stateimposed land annexation and plantation development, partly because the indigenous groups are numerically strong and partly because pressure on land is not so intense, indigenous land conflicts have not been as serious in Sabah as elsewhere in Malaysia. Notwithstanding, collective rights to land are relatively weak in Sabah. The legislation creates “Native Reserves” on state lands and recognizes Native Customary Rights (NCRs), interpreted as rights of usufruct, but which are extinguished in areas declared to be forests, areas of state projects or protected areas. Few NCR areas are demarcated. The majority of indigenous communities lack any legalized rights and are merely tolerated as tenants-at-will on state lands. Although the Land Ordinance is meant to give priority to those claiming customary rights on “unalienated country land”, in practice lands are allocated to other claimants without native peoples having a chance to object. Official procedures require customary rights-holders with unregistered lands to make their claims known within a specified time when others make claims to state lands but notices of such claims are rarely distributed to local villages. In urban and peri-urban settings, indigenous people have secured individual titles to secure their presence and participate in the vigorous land markets. Where plantation smallholder schemes have been promoted, individual land holdings have been provided to indigenous participants.

Sarawak

In Sarawak, where there are currently some 800 000 indigenous people from 28 ethnic groups, land issues have been a cause of international controversy since the 1980s. The state was administered as a private raj by a British subject until the Second World War and land tenure legislation evolved idiosyncratically to accommodate two contradictory tendencies, on the one hand affirming and recognizing NCRs, the authority of native chiefs and the jurisdiction of native courts, while on the other hand discouraging shifting cultivation and mobile villages. Since the Second World War, colonial and independence administrations have all pursued the second objective while progressively limiting native rights and institutions. Native systems of land use have been officially criticized as wasteful, backward and as obstacles to modernization. Extension of NCRs without permit has been officially frozen since 1955, and an administrative decision not to grant any further such permits was passed in secret in 1974. Maps of NCR areas, which the administration has admitted cover 22 percent of the state, have since been suppressed, native courts discouraged and native chiefs gradually co-opted into supporting the National Front coalition, which dominates both the State Parliament and the political economy, based on logging, plantations and, more recently, rapid industrialization. Community forests, conceived as state lands leased to communities, have been reduced in extent. Forestry laws have the effect of curtailing NCRs but logging concessionaires are encouraged to negotiate with customary rights-holders to secure unimpeded access.

State promotion of extractive industries on native lands has led to frequent blockades on access roads since the 1970s. Although laws have been amended to make such blockades illegal, they persist. Since the 1990s, the state has amended land laws to grant companies legal personality as “natives” and thus facilitate their access to areas zoned as native land. The promotion of oil-palm and paper-pulp plantations on native lands has further intensified native protests. Increasingly, communities have sought redress through the courts, seeking injunctions to halt proposed development schemes pending clarification of their land rights. Because official maps of the extent of NCR lands have been suppressed, communities have begun to carry out their own mapping projects to demonstrate their traditional areas. Legal argument has focused on whether NCRs extend to include areas of “tall forest” where community members hunt, fish and gather forest products and which they use as a reserve for extending their rotational farming, and whether the “aboriginal rights” of native groups have been extinguished by subsequent legislation.

In a recent case in the High Court at Kuching, the judge ruled in favour of Iban communities seeking the removal of the Borneo Paper and Pulp company from their lands. The ruling implies that natives in Sarawak enjoy radical collective rights to their customary land, and that these rights extend over all the lands they have customarily used and occupied (including “tall forest” and not just their areas of permanent cultivation). Moreover, their rights do not depend on an affirmative act of recognition by the state. Further cases are now expected contesting the extension of logging concessions over native lands and questioning the constitutional validity of forest laws, which extinguish native rights in areas unilaterally deemed to be Permanent Forest Estate.

The Sarawak State Government has clearly been alarmed by these legal developments. In November 2001, the Sarawak legislature passed the Land Surveyors Act 2001, which criminalizes community mapping. The act seeks to make it illegal for any except licensed surveyors to make maps that delimit “the boundaries of any land, including state land and any land lawfully held under native customary rights”. The move has been denounced by local NGOs, who have called for the restrictive sections of the law to be struck from the Act (Porter, 1968; Hong, 1987; Colchester, 1989; Lim Teck Ghee and Gomes, 1990; Erni, 1996; WRM and Forests Monitor, 1998; Colchester and Erni, 1999, Lim Heng Seng, 2000; Nicholas, 2000; Jomo, Chang and Khoo, 2004; Nor Anak Nyawai et al. vs Borneo Pulp and Paper Sdn. Bhd. 12 May, 2001; Press Release Sahabat Alam Malaysia 31 October 2001).

Philippines

The 6 - 7 million indigenous people in the Philippines belong to some 40 self-defined ethnic groups. Although a 1909 legal case during American colonial rule recognized indigenous ownership based on immemorial possession, in practice indigenous rights in land were denied after independence.

This denial, coupled with imposed largescale development schemes under the Marcos regime, provoked serious conflicts and contributed to insurgency and then counter-insurgency in many indigenous areas. Since the fall of Marcos, Philippine law has been overhauled to promote a recognition of indigenous peoples’ rights to “ancestral domain”.

The 1992 Constitution recognizes indigenous peoples’ rights to ancestral domain. A 1993 Administrative Order allowed the Department of Environment and Natural Resources (DENR) to give interim recognition of these rights by the issuance of Certificates of Ancestral Domain Claims (CADC), to afford protection against unilateral expropriation or exploitation until ownership could be determined. The 1997 Indigenous Peoples’ Rights Act (IPRA) establishes procedures for recognition of individual and communal ownership of “ancestral domains” and “ancestral lands”. Three million hectares now enjoy some protection under CADC and IPRA. IPRA:

The law has also been criticized for:

Critics say that the law has commoditized lands and given power to outsiders to re-allocate indigenous resources, at the same time encouraging the emergence of indigenous entrepreneurs bent on privatizing indigenous common lands. Under the IPRA, communities’ legal defences against expropriation lie in provisions for free and informed consent and the exercise of customary law. However, where community organization is weak and awareness of the law insufficient, it has proved all too easy for the unscrupulous to manipulate these provisions to their advantage. The lessons from this experience are that indigenous land titling should come with unbiased institutional support, legal training and capacity building to enable communities to select the appropriate title, manage their lands and make decisions in ways that ensure genuine consent. A legal challenge by the mining lobby to the constitutionality of the IPRA was successfully defeated in 2000. The defence also challenged the “Regalian Doctrine”, whereby the state claimed ownership of all untitled lands on the basis of the sixteenth century Spanish conquest (Cariño v Insular Government - 41 Phil. 935, 212 U.S. 449 [1909]; Bello, Kinley and Elinson, 1982; ASS, 1983; Drucker, 1985; Fay, 1987; Fiagoy, 1987; TABAK, 1990; Dorall, 1990; Lynch and Talbott, 1995: p. 90; Nicholas and Singh, 1996; Leonen, 1998; Colchester, 2000).

Papua New Guinea

The four million people of Papua New Guinea are among the most linguistically diverse in the world, speaking some 700 languages. Although natives comprise the great majority of the population, no one group is in a majority. In an effort to overcome a prevailing sense of marginalization from the state power, the country has adopted a highly decentralized administrative structure with many provincial ministries. The elaborate bureaucracy that has resulted absorbs some 40 percent of the state budget. It has created what has been described as a national “super-tribe” - the executive and legislature - that acts in its own interest and has exacerbated a community sense of alienation from government.

Under the law, some 97 percent of land in Papua New Guinea is owned by the indigenous peoples under customary law, considered the equivalent of collective freeholds, in which legally ill-defined clans are the landowners. Only about 1 percent of these lands have been legally registered. The small portions of alienated lands include the few coastal coconut and palm-oil plantations established during the colonial era. Lack of precision in the law about who exactly owns and controls customary lands, coupled with the fact that legal personality can be acquired by landowner groups under a number of different laws, has contributed to serious land conflicts in some areas.

Although clan lands are technically alienable under national law, they can only be sold or leased to the state in the first instance. Development agencies have thus argued that collective land ownership and traditions of consensual decisionmaking have impeded the evolution of land markets. The World Bank has attempted to circumvent this perceived constraint by promoting “lease - lease-back” arrangements, whereby a clan leases a portion of its lands to the state and the state then leases the land back to an entrepreneurial individual or subgroup of the clan for development. Armed with this lease as collateral, the entrepreneur can secure bank loans to develop the lands. Highland coffee estates and ranches, established by these means, have proved quite lucrative, but have led to growing disparities in wealth and power. In some cases, resentment against those who have thus grown rich has led to reemergence of “tribal” warfare.

Nothwithstanding clan ownership of the land, forests, rivers and subsurface minerals remain under the jurisdiction of the state, which also reserves to itself the power of eminent domain. Where enforced land alienation is not resorted to, access to and development of these resources by outsiders is subject to negotiation with landowners, who may demand benefit-sharing and compensation or mining royalty equivalents. Lack of clarity in the law about negotiation processes and the legal personality of landowner groups, coupled with the fact that many groups have little experience with the cash economy, have allowed developers to manipulate landowners, by bribery, creating nonrepresentative associations and to make unfulfilled promises regarding careful land management and the provision of services.

Foreign logging companies, mainly from Malaysia, have thus secured access to the majority of the forested areas of Papua New Guinea. Investigative commissions have exposed persistent malpractice by logging companies, which have also been accused of bribery and the manipulation of parliament to modify laws to facilitate their access to the resource. Church-based organizations and environmental groups have protested against this situation and have sought to promote small-scale community logging using portable petroldriven mills, wokabaut somils. Large-scale open-cast mines have also been established on clan lands and have been found to have very serious impacts on rivers and the livelihoods of downstream riparian groups. Unresolved conflicts between mining companies and aggrieved landowners are now clogging up the courts (Brown, 1978; James, 1985; Good, 1986; Marshall, 1990; Renner, 1990; Donigi, 1994; Wanek, 1996; Filer, 1997; FAO, 1998; WRM and Forests Monitor, 1998).

Russian Federation

There are currently some 250 000 people in the Russian Federation officially classified by the Constitution as “smallin- numbers peoples of the North and Far East”. They include the Saami people on the Archangel Peninsula in the west, the Aleuts in the Pacific and Turkic groups in the south on the border with China and Mongolia. Several million people from larger “nationalities”, such as the Buryat Mongols and Yakuts (Sakha), who have their own named republics, sometimes refer to themselves as “indigenous peoples” but are not dealt with further below.

During the early period of Russian expansion, the land rights of native peoples were almost totally ignored. Feudal notions of control of land and peasants by overlords (boyars), were extended by conquest, spearheaded by Cossack armies loyal to the Tsar. The Speransky reforms of the nineteenth century, later criticized for their paternalist intent, did give recognition to customary rights to land and advocated measures to determine these areas and secure them from settlement. Application of these reforms was ineffective, but the extortionate system of taxation (yasak), by which native peoples had to yield tribute in furs, was imposed with great brutality.

After the Russian revolution, all land was considered property of the state and although administrative units were created, as autonomous districts, provinces, territories and regions, designed to protect national minorities, these were also guided by the centralized administration. Under the Soviet system, traditional systems of land use were modified and “modernized”. Wealthier individuals and shamans were targeted as kulaks and reactionaries. Native resistance to state expropriations and imposed administrative regimes was put down by force of arms. Traditional systems of fishing, trapping and reindeer-herding were collectivized, which implied the forced resettlement of dispersed peoples into collective farms (kolkhoz). In the 1960s, most collective farms were nationalized as state farms (sovkhoz), creating further concentration of settlements and the imposition of strict bureaucratic controls on community life. In the last year of the Soviet era, the USSR subscribed to ILO Convention 169, although the ILO itself was not informed of this decision. The transition to a market economy has brought further disruptions. State farms have been dismantled and collective farms and centralized settlements have been thrown on to the market. Serious poverty and illhealth have resulted.

Land tenure legislation is now in a process of reform to accommodate these changes. The new Constitution recognizes international principles of human rights and Article 69 specifically guarantees the rights of “small-in-numbers” indigenous peoples. Decrees passed in 1992 propose the creation of official bodies of selfgovernment in areas traditionally inhabited by indigenous peoples and delegate responsibility for allocating lands to regional authorities. A 1999 Federal law states that indigenous peoples “have rights to protection by the courts of indigenous lands, ways of life, economies and trades ...”. A 2000 Federal law recognizes that clan communities (obshchina) can obtain collective land rights but does not explain how. Finally, in early 2001, a Federal Law was passed recognizing indigenous peoples’ rights to “Territories of Traditional Nature Use” (TTPs), intended to provide them with secure areas where they can carry out “traditional” economic activities. Alienation of land from TTPs would only be allowed subject to a referendum of all constituent communities. However, none of these Decrees and Federal Laws has been followed up with clear regulations that would allow federal or regional authorities to put them into effect in an agreed way. Thus, although the prospects for securing indigenous land rights in the Russian Federation continue to brighten, no such land rights have yet been properly secured, but some regions and republics have moved ahead unilaterally to allocate obshchina lands (Vakhtin, 1992; Forsyth, 1994; IWGIA, 1996; Fondahl, 1998; Pika, 1999; Anderson, 2000; Phipps and Colchester, 2001).

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[1] In 1988 the Tribal Research Institute in Chiang Mai counted some 550 000. Higher estimates allow for natural increases since that date.

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