Land has always been an indispensable part of the existence of the indigenous peoples. It is not only an attachment to them, land and the indigenous peoples are organic. Culture, custom, economy and general lifestyle of the indigenous peoples are inseparably tied to land and territories for its very existence and survival.
As the very term “indigenous” suggests, they are “peoples, and nations those that having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their cultural patterns, social institutions ad legal systems.”
In May 2016, the Fifteenth Session of the United Nations Permanent Forum on Indigenous Issues (UNPFII) affirmed that indigenous people are distinctive groups protected in international or national legislation as having a set of specific rights based on their linguistic and historical ties to a particular territory, prior to later settlement,
development, and or occupation of a region. The International Labour Organisation (ILO) called its 169th Convention in 1989 as Indigenous and Tribal Peoples Convention and laid down significant inalienable rights and land protection mechanism. Article 13 to 18 specifically deals with land protection of indigenous and tribal people.
- The use of the term lands includes the concept of territories, which covers the total environment of the areas which the peoples concerned occupies or otherwise use.
- The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised.
- 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.
- 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.
- 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.
- In cases in which the State retains the ownership of mineral or sub-surface 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 programmes for the exploration or exploitation of such resources pertaining to their lands.
- Procedures established by the peoples concerned for the transmission of land rights among members of these peoples shall be respected.
- 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.
- 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.
Apart from these provisions, the United Nations Declaration of Rights of Indigenous People (UNDRIP) in Article 3 declared, “Indigenous peoples have the right to self- determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Article 4 continues, “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self- government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.”
Most importantly, with regards to land, Article 10 resonates, “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.”
Eventhough international bodies and treaties recognized, acknowledged and seek to protect the rights of indigenous peoples in the strongest way possible, unfortunately the rights ILO Convention 169 and UNDRIP was not ratified by the Indian government, implying that these provisions does not directly apply as official legislation by the Indian government within its territory.
Instead, the Indian government had provided adopted terms like Scheduled Tribes to denote what international bodies called indigenous people; and provided certain protective mechanism to ensure the welfare of the indigenous people.
In Manipur, we have the mechanism of Article 371 C in the Indian Constitution which gives certain legislative system to protect the interest of the tribal/indigenous people which seldom works in our favour. On that basis, we have the Autonomous District Council of which its insufficiency which we do not need to deliberate here.
Owing to these factors, we faced constant threat in terms of our custom, culture, administration, judicial system and land rights from dominant communities. The infamous 3 bills, the unilateral declaration of Kai/am Wi/d/ife Sanctuary, Chandrakirti Memoria/ Park at Chivu in Behiang by the Manipur government are recent examples of the threat to our right over land. Oil exploration and the lack of prior consultation from the government and consent from our side, and the denial of royalty over resources within our land speak for itself of the insufficiency of our land protection system. While we have unique land holding system in the Hill Areas, the non-endorsement of our land holding system by the Manipur government and possibility of arbitrary extension of MLR & LR Act is a testimony to the threat to our land.
On this august and significant occasion of International Day of World Indigenous Peoples, 2018 let us remind ourselves of the rightful recognition of our rights over land by international bodies and treaties, and assess on the threat, challenges and hindrances standing in our way to acquire these inalienable rights. Let us re-examine our scale of ambition whether it measure up to achieve the high goal set by the international bodies and treaties in order to secure rightful claim over our lands.
As the Native American proverb says, “We do not inherit the earth from our ancestors; we borrow it from our children.” Let us remember that we have the responsibility to not only reclaim our due rights over land, but we also are responsible to safely deliver it to our children.
- Speech delivered by Thangbiaklian Hangzo on ‘World Indegenous Day 2018’ organised by Zomi Human Rights Foundation at Lamka