Ancestral domain, customary and statutory rights to the land
The right to ancestral domain, collective ownership of land, customary land rights and the concept of “time immemorial” possession have been claimed as exceptions to the regalian doctrine and private individual ownership.
In a large number of countries there are conflicts between private land ownership and tenure provisions allowed for under the customary law of the indigenous peoples and those provided for by statutory laws.In Africa, this conflict was first generated through colonial models that tended to provide for dual systems of ownership, with settlers having private rights to land and indigenous Africans enjoying communal rights. This distinction has been maintained to greater or lesser degrees in various countries. In Southeast Asia the growth of the logging industry in recent years has led to pressure on forest dwellers who until recently had exclusive occupation of the land under customary law.14
Issues of land tenure and titling have a particular importance for indigenous peoples. The indigenous rights movement worldwide has accepted that indigenous peoples have the basic right to manage their lives, development and resources in a distinct manner within the framework of a multicultural state. This is a “special rights” approach that links the recognition and enjoyment of these rights to a particular ethnic or cultural identity. Such “special rights” have been approached conceptually in different ways. One way is to argue that indigenous peoples have “original” or “immemorial” rights to their lands and resources, in that they never sacrificed these rights after conquest and colonization. It is these concepts of original and native title to land that are now driving the indigenous rights movement in such places as Australia and Canada. A second way is to place the emphasis on the historical land rights of indigenous communities, namely the ancient land titles that were issued during the colonial period or after independence. This approach has been important in countries including Colombia, Guatemala and Mexico, where ancient land titles can be jealously guarded.
A third way is to place the emphasis on discrimination and on the need to combat the injustices of the past by adopting special measures to favor indigenous access to the land. This third dimension of a rights-based approach focuses not so much on the concept of special historically derived rights as on the need to promote genuine equality of opportunity for indigenous peoples in economic and social development. Thus indigenous peoples should be specially favored in land access, distribution and purchase programs.
Aboriginal Land Claim in South Africa
As of early 1999 the Legal Resources Centre in South Africa was litigating an aboriginal land claim on behalf of the Richtersveld community. The community of 3,000 used to be nomadic and pastoralist people who traditionally occupied the Richtersveld. The land claim was held by the state-owned diamond mine Alexkor, which was in the process of privatization. The LRC was negotiating for a community equity share in the mine and to secure the land rights of the community. It was also working on an integrated development plan which would provide that
• the residential land at Alexkor should be formalized as a town;
• the irrigation land should be transferred to an equity, which will operate for the benefit of and include participation of the Richtersveld and Namaqualand communities;
• the grazing land should be transferred to the Richtersveld community as part of the settlement of the land claim; and
• the mining land be retained by Alexkor
Special attention should be paid to the right of women to land. In many cultures and societies, women are excluded from owning property, including land, or they do not enjoy the same rights as the men.In marriage and family relations, women’s right to property is often subject to the authority of the husband or father. Ensuring equal rights to property translates into economic empowerment and has a direct bearing on the status of women. Denial of and/or limitations on rights to land and discrimination against women can be seen, for instance, in laws that exclude women from inheriting land.
Land Rights of Women
Even though women play a very substantial role in agriculture in most countries around the world, land ownership and/or land tenure systems, whether customary or statutory, have historically very often discriminated against women. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) recognizes women’s land rights. Article 14 of CEDAW obliges states parties to
take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on the basis of equality of men and women, that they participate in and benefit from rural development and, in particular . . . ensure to such women the right:
. . . (d) to obtain all types of training and education, formal and non-formal, including that relating to functional literacy, as well as the benefit of all community and extension services, inter alia, in order to increase their technical proficiency;
. . . (g) to have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes . . .15
Women and Land-South Africa
The White Paper on South African Land Policy notes that “it is essential that gender equity be ensured in the land distribution and land reform programme . . . ”
Positive constitutional and policy provisions must be seen against the background of the acute social, economic and political disadvantages suffered by the majority of women in South Africa. Most rural women are agricultural producers, cultivating mainly subsistence crops. As a result of apartheid, most became farm managers when their husbands and sons were forced into wage labor on the mines and in the cities. Most are heads of households, bearing the responsibility for childcare and household maintenance in addition to agricultural production. In keeping the “home fires burning,” they have to put in extra hours of work carrying water and finding wood since they do not enjoy such infrastructural support as electricity, piped water or other social services. Women’s position is the result of discrimination emanating from race, class and gender oppression and each finds expression in relation to land.
As part of the black majority, black women were prevented by apartheid from owning land in 87 percent of the land in the country. In addition, customary laws as tampered with by apartheid prevented women from owning land. Up until 1986 a women was not able to obtain real rights to land without the permission of her husband or guardian. Even though the racial restrictions on owning land have been lifted, because of their extreme poverty most rural black women cannot afford to buy land.
Women’s participation in the land reform process has not been on an equal basis with men so far. Many of the trusts and committees established in the land restitution and redistribution process are still male-dominated. The Communal Property Associations Act of 1996 ensures equal representation of women but the equal participation of women is not guaranteed.
The Recognition of Customary Marriages Bill of 1998 has been introduced to Parliament. The proposed legislation includes measures that bring customary law in line with the Constitution and South Africa’s international obligations. The legislation provides for the equal status and capacity of the spouses and provides measures for women to enter into contractual ownership agreements. The legislation proposes that Section 11 (3b) of the Black Administration Act, which regards women as perpetual minors, be repealed.
Equity will be achieved only with the removal of all legal, social and economic restrictions on the participation of women. The Land Reform Process must include the reform of customary marriages, natural resource management policies, and inheritance laws where they are obstacles to women receiving and holding rights in land. Challenges to South Africa’s Constitutional and Land Policy Processes must thus go well beyond reforming rights in land.
In various countries, individuals or groups are demanding the restitution of land they believe was unlawfully taken from them-or payment of compensation in lieu of the land.Such claims have been common in Central and Eastern Europe, for example, where land had previously been subject to collectivization. Similarly, the issue of the return of land in Israel or the Occupied Territories to Palestinians who had owned it has long been a bitter issue.
Discrimination and the Principle of Restitution
Basic to international human rights law are provisions related to equality and nondiscrimination. Article 2(2) of the ICESCR, for example, provides:
The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
According to article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD):
State Parties must assure everyone within their jurisdiction effective protection and remedies through the competent tribunals and other State institutions, against any acts of racial discrimination which violate his human rights . . . as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damages suffered as a result of such discrimination.16
These provisions apply to ownership of land as well as security of tenure of land. One of the bases on which restitution has been claimed or provided has been discrimination-that land had previously been taken from an individual or group because of their racial, ethnic or other identity.
South Africa and the Right to Restitution
Land ownership in South Africa has long been a source of conflict. Its history of conquest and dispossession, of forced removals and a racially skewed distribution, has left it with a complex and difficult legacy. Section 25(7) of the South African Constitution now provides:
A person or community dispossessed of property after June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.
The right to restitution is guided by principles of fairness and justice. It is therefore important to identify the different ways in which people have been prejudiced through dispossession:
• dispossession leading to landlessness
• inadequate compensation for the value of the property
• hardships which cannot be measured in financial or material terms
A restitution claim will be accepted for investigation where the claimant was
• of a right in land
• after 19 June 1913
• under or for the object of furthering the object of a racially discriminatory law
• was not paid just and equitable compensation
• was dispossessed as a result of past racially discriminatory laws and practices.
The claimant should have a registered or unregistered right or interest. Such a right may have been established by occupation of the land for a substantial period. It is not limited to a right recognized by law nor to ownership rights; it may include certain long-term tenancy rights and other occupational rights. Recognition is given to the fact that discriminatory laws may have prohibited certain claimants from obtaining legal rights on account of their race.
Implementation of the restitutional right through negotiation by the parties or adjudication by the Land Claims Court can take the following forms:
• restoration of the land from which claimants were dispossessed
• provision of alternative land
• payment of compensation
• alternative relief, including a package containing a combination of the above, sharing of land or special budgetary assistance such as services and infrastructural development where claimants presently live
• priority access to state resources in the allocation and the development of housing and land in the appropriate development program.
The Commission on Restitution of Land Rights was established in 1995 with a national office and eight regional offices. The Land Claims Court is tasked with the responsibility of ratifying agreements that are mediated by the commission as well as arbitrating in cases where no agreement can be reached. The court’s principal powers lie in the ability to determine restitution, compensation and rightful ownership.
The strategies and approaches that have been used to protect and promote land rights are varied and operate at different levels.
Strategies and Approaches
- One common approach is legal reform.Land rights activists know that unless there are changes in the laws and institutions on land rights, fighting for rights to land on a case-by-case basis is very difficult.
- As previously explained, the odds are stacked against the activist at the outset.One approach therefore has been to develop new legal principles and mechanisms that give better footing to sectors of society that have been placed at an historical disadvantage. This is true in struggles for urban and rural land reform, claims to ancestral domain and assertion of customary law.
- Another common approach is to expose and oppose the negative effects of development and commercial projects that entail large-scale displacement.This approach is used in campaigns against dam projects, commercial logging, plantations, mining, etc.The campaigns are usually related to larger issues such as skewed government priorities, cronyism and corruption,17 as well as globalization and the role of nonstate actors such as the World Bank and multinational corporations.
- Another strategy, related to campaigns against infrastructure and commercial projects, is to assert related rights, for example, the right to information and consultation, compensation, restitution and equal treatment.
Campaigning for the Right to Information, Consultation and Compensation
The Bakun Dam is a hydroelectric project of the government of Malaysia in Sarawak. When completed, the dam will inundate an area the size of Singapore and will render 10,000 indigenous people homeless. When the Bakun Dam was being planned in the mid-1980s, the people who were going to be displaced were never consulted or even informed about the project. They opposed the forced relocation by a combination of protest actions, lobbying and campaigning. Together with concerned NGOs and other political allies, they raised the issues of consultation, just compensation, relocation and right to information.
Due to the concerted actions taken, the government of Malaysia was forced to shelve the project in the late 1980s. When the project was revived in 1993, the government, through the Bakun Development Committee, was forced to sit down at the negotiating table and discuss issues of concern to the people.
Though the issues are far from settled, the case highlights the importance of framing the rights issues in presenting an opposition to development projects such as the Bakun Dam project.
1. The problem of commercial encroachment is on top of the problems of landlessness and feudal exploitation that still exist in many developing countries.
2. Construction of wharves and the conversion of seas for commercial navigation interfere with, if they do not eradicate, traditional fishing communities. In coastal areas in Manila Bay, commercial development has displaced fishing communities and prevents access by fisherfolk to the bay.In Indonesia, the creation of marine reserves, construction of bridges to connect islands, and the creation of industrial estates along the coast of Java is interfering with the movements and traditional activities of sea nomads.
3. Weekly Mail and Guardian 15, no. 7 (February 1999): 19.
4. See Jose W. Diokno, A Nation for Our Children: Human Rights, Nationalism, Sovereignty: Selected Writings of Jose W. Diokno, ed. Priscilla S. Manalang (New Manila, The Jose W. Diokno Foundation; Quezon City, Philippines: Claretian Publications, 1987), 47-48.
5. Roger Plant, “Land Rights in Human Rights and Development: Introducing a New ICJ Initiative,” The Review, no. 51 (Geneva: International Commission of Jurists, 1993): 10.
6.Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222, entered into force 3 Sept. 1953, as amended by Protocols Nos. 3, 5, 8 and 11, entered into force 21 Sept. 1970, 20 Dec. 1971, 1 Jan. 1990, and 1 Nov. 1998 respectively, article 1.
7.American Convention on Human Rights, OAS Treaty Series No. 36, 1144 UNTS 123 entered into force 18 July 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), article 21.
8.African [Banjul] Charter on Human and Peoples’ Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 Oct. 21 1986.
9.Declaration on Social Progress and Development, GA Res. 2542 (XXIV), 24 UN GAOR Supp. (No. 30) at 49, UN Doc. A/7630 (1969). United Nations Declaration on Social Progress, 1969.
10. Plant, op cit., 19.
11. Writ Petition (Civil) no. 337 of 1995.For further information on this situation, see Alka Sabharwal, “Strangers in Their Own Land,” Down to Earth, 15 November 1999, 21.
12. 1997 (6) SCALE (SP) 8.
13. Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), 72 ILO Official Bull. 59, entered into force 5 Sept. 1991.
14. Plant, op cit., 26-28.
15. Convention on the Elimination of All Forms of Discrimination against Women, adopted 18 Dec. 1979, GA Res. 34/180, 34 UN GAOR Supp. (No. 46), UN Doc. A/34/46 (1980), 1249 UNTS 13, entered into force 3 Sept. 1981, reprinted in 19 ILM 33 (1980).
16. International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195, entered into force 4 Jan. 1969.
17. For example, problems of land encroachment and land grabbing by powerful interests; corruption and manipulation in the titling of land and maintenance of land records; concessions given to cronies; and exemptions from coverage of land reform programs.