SECTION FIVE
SOCIAL, ECONOMIC AND PROPERTY RIGHTS
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” [
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