Briefing Paper: Recognition of Indigenous Peoples’ Customary Land Rights in Asia
In Asia, various legal instruments have been used to recognize indigenous peoples within the legal framework of State. States have recognized indigenous peoples through constitutional provision, special laws, and court decisions and/or through ratification or adoption of international instruments. However, legal recognition by states does not always guarantee the full range and enjoyment by indigenous peoples of their individual and collective rights as provided in international instruments such as the UN Declaration on the Rights of Indigenous Peoples.
Indigenous peoples in Asia have developed their particular customary land use and tenure systems through time, which have existed since time immemorial and continue to be practiced until today. These customary land use systems are largely community-based and managed according to the livelihood needs and practices of the community. Generally, the right to use and manage the land and resources is regulated collectively within the community and allows equal opportunities to community members for access to resources. Ownership rights over a particular resource or stretch of land depend on the nature of the land or resource and is handed down or transferred from generation to generation. Different land use patterns and complex land ownership systems are found, which may include individual, clan and community ownership. Individual tenure is usually practiced over paddy terrace fields or residential or settlement areas. Collective rights may exist at different levels and may be vested on the whole community or part of it, such as a clan or kinship group.
Governments in Asia have passed laws and policies promoting the recognition of indigenous peoples customary rights to their land and resources. A key development in some countries is state recognition of communal land or collective rights over land and forests. However, there is clearly weak implementation of these laws. In spite of the existence of these laws and policies recognizing customary land rights, indigenous peoples in Asia continue to face land dispossession and destruction on a wide scale due to large-scale development and resource extraction by state and private business interests in their traditional territories.
Consequences of such land dispossession and land use change are grave for indigenous peoples, especially for indigenous women. These include loss of access to the primary source of their traditional livelihoods, triggering a situation of food insecurity, destruction of forests and the loss of biodiversity upon which many indigenous peoples rely on for their survival. Poverty and social breakdown also result due to a disruption of traditional social structures and values. These impacts are aggravated by continuing challenges such as negative attitudes and discrimination towards indigenous peoples, lack of awareness and understanding of the UN Declaration on the Rights of Indigenous Peoples and lack of political will by governments to fully implement state laws and policies. In some communities, indigenous organizations are also not strong enough to assert their rights.
The recognition, protection and fulfillment of indigenous peoples’ right to land is crucial, not only for their physical but also for their cultural survival and wellbeing. States need to respect the economic, social, cultural and spiritual values and importance that indigenous peoples attach to their lands, territories and resources, and take immediate steps to ensure the full exercise of indigenous peoples’ customary land rights for their sustainable development, peace and security.
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