The responsibility of the State as in this issue is further spelt out in Article 26(3) which states that “States shall give legal recognition and protection to these lands, territories and resources.
By Salam Rajesh
One of the pervasive issues across the globe is the perpetual conflicts of interest between state and communities – read as indigenous peoples and local communities – over land rights, rights to access and resource use, rights to life and livelihoods, rights on traditional and cultural values and practices, and rights to worship in religious spaces. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is very clear on this subject, wherewith it lays bare the pronouncement as: “Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources”.
Within the circumstances leading to mild and intense forms of conflicts between state and communities is the perpetual question on land rights. The growing voice amongst indigenous peoples and local communities worldwide is the assertion on rights over indigenous territories traditionally accessed, governed and managed by the people themselves. Conflicts of interest between state and communities as in the Amazonian region, in Southeast Asia, in South Asia and in Manipur’s own backyard, fundamentally concerns issues on land rights – rights over the ancient territories enjoyed by the locals since ages.
Much of the articles enshrined in the UNDRIP talks specifically of the fundamental rights of the indigenous peoples and local communities. Articles 10, 18, 19, 20, 22, 25, 26, 27, 28, 29, 32, 40, 43, 44, 45 and 46 of the UNDRIP are quite specific on the responsibilities of states to respect the fundamental rights of the local peoples, more specifically the vulnerable and the marginalized sections of people.
Of the several cases on conflicts of interest between state and local communities as in Manipur, the one on local fishers’ assertion of their traditional rights in Loktak Lake features glaringly at both local and national context. This assertion finds reflection in Article 26 of the UNDRIP where it says: “(1) Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired; (2) Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired”.
The responsibility of the State as in this issue is further spelt out in Article 26(3) which states that “States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned”.
Apart of the Loktak fishers, the same issue has been raised by indigenous peoples in Manipur’s uplands where state forest department has proposals to declare wildlife sanctuaries – as in Bunning, Zeilad, Jiri Makru and Keilam, and a national park at Shirui Kashong – where protests from the locals have blocked the final notification of these wildlife sanctuaries and the proposed national park. The issue is primarily on the fundamental question of land rights and access to resource use, and the follow-up actions once the territories are acquired by State for adopting the protected areas.
The core issue defining the conflicts of interest is basically the claims by the locals that the processes were initiated without the ‘free, prior and informed consent’ of the to-be-affected people. This is the issue as in Jiri Makru or Loktak or Pumlen – whatsoever. UNDRIP’s Article 19 clearly states that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them”. This is further reiterated in Article 10 which says that “Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return”.
The other core issue concerning conflicts of interest between state and communities is the question on claims by local people that they are more or less out of the picture in the process of drafting legislations or in conceptualizing major projects and schemes by the State likely to affect them. This is addressed by UNDRIP in its Article 18 where it states that “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions”.
This very issue is in the heart of the conflicts of interest between local fishing community of Loktak and the State during these past 38 years as of now. This same issue now has cropped up in Pumlen Pat and Khoidum Lamjao wetland areas where local communities have questioned the rationality of the State to design policies likely to affect the locals without having involved them in the very first place, that is, in designing and conceptualizing the objectives of the schemes to be taken up in these wetland areas, or in framing legislation affecting them.
Article 27 of the UNDRIP touches on this aspect, wherewith it says: “States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process”.
On conflict resolution, as and where it occurs or has occurred as in the case of Loktak fishers or of Pumlen farmers, UNDRIP’s Article 32 puts it down plainly in black and white as: “(1) Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources; (2) States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
(3) States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact”.
Finally, wrapping up on the issue, Article 46(3) of the Declaration makes it clear for all when it states that “The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith”.
(The writer is a media professional and an environmentalist. He can be reached at firstname.lastname@example.org)Rights of indigenous peoples