UNDER THE COVER OF COVID : New Laws in Asia Favor Business at the Cost of Indigenous Peoples’ and Local Communities’ Land and Territorial Rights

The planet is facing an unprecedented global health crisis as a result of COVID-19. As of September 29, over 1 million people have died from the virus. A protracted pandemic is increasingly likely as the initial health crisis begins to transform into compounded food security and economic crises.

Among some of the most vulnerable groups to COVID-19 are Indigenous Peoples and Local Communities (IPs and LCs), who already face entrenched inequalities, stigma and discrimination. Insufficient access to basic health care services, sanitation, and limited internet for online education platforms are some of the structural problems impacting communities’ capabilities to cope with this pandemic. However, when communities enjoy their right to self-determination, they have shown their tenacity in creating culturally appropriate and community-led responses to crises, even COVID-19.

The foundation of successful responses to this crisis are secure tenure rights, healthy and productive ecosystems, and respecting the agency of a community to remain in voluntary isolation by halting all projects requiring their Free Prior and Informed Consent (FPIC) for the duration of the pandemic.

IPs and LCs customarily manage over 50% of the earth’s terrestrial surface, however only 10% of this area falls under a secure tenure regime that supports their traditional ownership rights.[1] This tenure insecurity curtails IPs’ and LCs’ power to implement well-established strategies that would prevent the spread of virulent pathogens, such as voluntary isolation.[2] Furthermore, without secure tenure, communities’ territories are at risk of being targeted for their rich reservoirs of natural resources as governments look to cushion the looming global economic recession by expanding extraction. Finally, the pandemic has led to a decline in the enforcement of land rights laws on the books, an increase in land-grabbing, and criminalization of IPs and LCs fighting for their fundamental rights over the socio-ecological systems they steward.[3] Thus, beyond its public health implications, COVID-19 a ‘threat multiplier’ on lands without secure tenure.

The recent release of the fifth Global Biodiversity Outlook by the Secretariat of the CBD found that all Aichi Biodiversity Targets were missed by governments and only six of these were partially completed this past decade.[4] The global economic crisis and “business as usual” solutions have jeopardized the next decade of environmental targets before they are even formally ratified. Pursuing economic development at the expense of social and environmental justice undermines IPs and LCs’ ways of life as well as the wellbeing and health of all of us on this planet. To emerge from this pandemic with more equitable and sustainable societies, we need inclusive and transformative change that redresses fundamental injustices such as tenure insecurity, political marginalization and social discrimination of communities that manage over half of the earth.

This brief discusses legislative developments during COVID-19 in India, Indonesia, and the Philippines that undermine sustainable human-environment interactions and IPs’ and LCs’ broader enjoyment of their rights over their customary territories. While India, Indonesia and the Philippines have yet to ratify the Indigenous and Tribal Peoples Convention, 1989 (No. 169) (ILO 169), all three countries have ratified the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Each of these countries has also promoted national-level tenure reforms over lands and forests, though their implementation has been weak.[5]

In this brief, we first introduce the context to COVID-19 in each focus country. Legislative processes presented here are occurring alongside each country’s pandemic response, including state-led lockdowns, which provides important context. Then, we summarize legislative developments through three themes, which at times overlap:

  1. Opportunistic advancements in controversial legislative processes that pre-date COVID.
  2. Corporate stimulus and compensation.
  3. Top-down pandemic solutions that undermine IP and LC rights.

We find that in India, the Philippines and Indonesia, government initiatives are continuing pre-COVID developmental agendas that have increased the likelihood of vector-borne diseases such as COVID-19 to proliferate and enter human hosts.[6] These activities have undermined global agendas for addressing climate change and the collapse of biodiversity, and will continue to do so if people-centered responses to the pandemic are discarded in favor of environmentally destructive trajectories.

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[1] The recognition of secure collective land and resource rights are broadly recognised by state and non-state actors as contributing towards the advancement of internationally defined social, economic and environmental objectives. In practice, national legislative bodies have been slow to formalise tenurial regimes that support the communities and traditional practices of indigenous peoples, local communities and rural women.

[2] Tribal villages in West Bengal, India, have been proactive in their response to COVID-19 enacting their own lockdowns and self-isolating migrant workers returning from urban spaces.

[3] Asia Indigenous Peoples Pact. (2020). Submission by Asia Indigenous Peoples Pact (AIPP) and its member organizations and networks in partial response to the ‘Call for inputs Report’ of the Special Rapporteur on the Rights of Indigenous Peoples to the General Assembly Impact of COVID-19 on Indigenous Peoples in Asia. Retrieved from https://aippnet.org/wp-content/uploads/2020/06/Final_AIPP_UNSRIP-June2020.pdf

[4] Secretariat of the Convention on Biological Diversity. (2020). Global Biodiversity Outlook 5. Montreal. Retrieved from https://www.cbd.int/gbo/gbo5/publication/gbo-5-en.pdf

[5] Rights and Resources Initiative. (2018). At a Crossroads: Consequential Trends in Recognition of Community-Based Forest Tenure from 2002-2017. Retrieved from Rights and Resources Initiative, Washington D.C.: https://rightsandresources.org/wp-content/uploads/2019/03/At-A-Crossroads_RRI_Nov-2018.pdf.; Kumar, K., Singh, N. M., & Rao, Y. G. (2017). Promise and Performance of the Forest Rights Act. Economic & Political Weekly, 52(25-26).

[6]Zoonotic diseases are common and their proliferation has long been linked to industrial agriculture, wildlife markets, deforestation and environmental degradation. These dynamics create the ideal environment for pathogens to rapidly proliferate and mutate across reservoirs of species who would otherwise not come into close contact with larger human populations. COVID-19, climate change, the loss of biodiversity and economic activities that contribute to environmental degradation are all interlinked.

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