Category Archives: FDCIP 2013 Report

FDCIP 2013 Jennifer Hays

Forum update about collaboration and 2014 Forum conference

Jennifer Hays
SOGIP – Scales of governance and Indigenous Peoples

This Forum update describes a new collaboration between the Forum for Development Cooperation with Indigenous Peoples and a French-based research project on indigenous rights, including a conference focusing on indigenous education, to be hosted at the University of Tromsø in April 2014.

SOGIP

The project SOGIP (Scales of Governance: The UN, the States and Indigenous Peoples) is a five-year international comparative research program on the rights of Indigenous Peoples, funded by the European Research Council (ERC 249236) and based at the École des Hautes Études en Sciences Sociales (EHESS), in Paris, France.

The SOGIP research team studies the ways in which the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), and other relevant international norms and conventions, are endorsed or dismissed by States and civil society in different cases relating to Indigenous peoples. The guiding research questions are: How do Indigenous Peoples, who organize themselves in different patterns, and who reside within different political regimes and state legal apparatuses, build models of free choice to ensure their future? And what is the role of the international Indigenous rights movement and international legal mechanisms in this process?

The SOGIP research team, led by Irène Bellier, and is composed of anthropologists, sociologists, political scientists and jurists who are specialists in different regions of the world. The regions and case studies include: Southern Africa – Botswana, Namibia; the Americas – Argentina, Bolivia, Chile, French Guyana, Mexico; Asia – India; and the Pacific – Australia, New Caledonia. In addition, the United Nations and its agencies constitute a field of investigation.

During the 5 years of the project (2010 – 2015), SOGIP is hosting a series of workshops. The first, in 2011, focused on international mobilization, governance and legal issues. The second, in 2013, addressed indigenous peoples and their rights to land, including land policy and use, conservation and extractive industries.

Cooperation with the Forum

In 2014, for the third conference in the series, SOGIP is joining with the Forum for Development Cooperation with Indigenous Peoples to co-host the conference: Education and Learning from an Indigenous Rights Perspective: What knowledge, skills, and languages for sustainable futures? This conference will be held at the University of Tromsø, 2 – 4 April 2014.

For this meeting, SOGIP and the Forum will merge their two conference series focusing on global and local issues of indigenous rights, to address the critical issues around education. At this conference we will discuss the numerous and complex challenges of addressing educational concerns for Indigenous peoples – including issues involving language and knowledge, indigenous education models, higher education, development cooperation, and self-determination. As with previous conferences in both series, academics and practitioners, including those who are indigenous themselves, will engage in a constructive dialogue based on comparison of specific case studies, and with reference to the global context.

We look forward to good collaboration and a thought-provoking and productive conference in April.

For more information about SOGIP visit: www.sogip.ehess.fr

FDCIP 2013 Camilla Brattland

The Human Rights of Small-scale Fishers and Indigenous Peoples in Norwegian Fisheries Policies

Camilla Brattland
Researcher, NIKU (The Norwegian Institute for Cultural Heritage Research)

Introduction

The human rights of small-scale fishers is an emerging issue on the international agenda with which both small-scale fishers and fisheries governors, as well as many Indigenous peoples, the world over are concerned. But what does it mean to implement a human rights based approach to fisheries, and what does it imply relative to protecting the rights of Indigenous peoples to the sea? This paper uses Norway as a case in point for exploring these questions. Norway is one of the countries that have played important and leading roles in establishing the FAO’s Voluntary International Guidelines for Sustainable Small-Scale Fisheries, concerning the human rights of small-scale fishers. At the same time, protection of Indigenous fishing rights within the framework of state management has been an on-going issue in Norway during the latest decades, which have recently come to some conclusions. Most importantly, the principle of safeguarding the material basis for Sámi culture has become an integral part of politics and policies in and for the Norwegian fisheries sector in general. This paper discusses to what extent recent changes in Norwegian fisheries policies implement a human rights based approach to fisheries, and what it entails for the protection of small-scale fishers’ human rights and Indigenous peoples’ fishing rights respectively. In the following, a brief background on the human rights based approach to fisheries is provided, before the current state of Indigenous fishing rights in Norway and how it relates to the human rights of small-scale fishers in general is dealt with in detail. Finally, a few concluding remarks on the extent to which the Norwegian case serves as a good example in the way of implementing a human rights based approach relative to protection of Indigenous fishing rights are offered.

Small-scale fishers, human rights and Indigenous fishing rights

The human rights based (HRB) approach to small-scale fisheries (SSF) is a combination of development with human rights, placing responsibility on governments as well as wealthy countries to provide development through small-scale fisheries as a human right. Development as a human right entered the UN system as an approach in the mid-1990s. In the field of fisheries, development issues such as poverty alleviation and food security are now increasingly being perceived as human rights that states have the responsibility to ensure. The FAO, Food and Agriculture Organization (FAO) of the United Nations, on its 29th session in 2011, recommended the development of an international instrument on small-scale fisheries: what has now become known as the Voluntary International Guidelines on Securing Sustainable Small-Scale Fisheries. The guidelines are focused on developing countries, and will be:

“/…/in support of poverty alleviation and equitable social and economic development, for improving governance of fisheries and promoting sustainable resource utilization. Their objective is to provide advice and recommendations, establish principles and criteria, and information to assist States and stakeholders to achieve secure and sustainable small-scale fisheries and related livelihoods” (FAO 2012).

The Guidelines are formulated through a social movement of fisheries organizations, researchers, and small-scale fishers worldwide. As part of the human rights based approach to fisheries, the guidelines entail that small-scale fishers, fish workers, and their communities, should be ensured access to fish as a way of achieving development. It encompasses civil and political rights, economic, social, cultural rights, as well as collective and solidarity rights.

Fig. 1 Relationship between the human rights of small-scale fishers and Sámi people in Norway (Slide 2).

Fig. 1 Relationship between the human rights of small-scale fishers and Sámi people in Norway (Slide 2).
Fig. 1 Relationship between the human rights of small-scale fishers and Sámi people in Norway (Slide 2).

The human rights approach to small-scale fisheries can also be seen as a social movement with the effect of creating new social groups that hold a human right to development from small-scale fisheries. This movement shares many similarities with the global Indigenous rights movement, however with some differences. An Indigenous fishing right raises questions of property and how to divide resources between the Indigenous people as a whole and the state based on the recognition of previous colonial relations and historical use. Indigenous fishing rights are rights that have been established through custom or historical use of marine resources, and may have a basis independent of state recognition. A human right to fish, on the other hand, raises questions such as the right to food, development, participation in governance of resources, recognition of sea tenure rights, and so on, for a group of small-scale fishers in relation to other groups of fishers within the fisheries sector (FAO 2012). Small-scale fishers in North Norway are currently holders of human fishing rights, but also of Indigenous fishing rights, which however invoke a different set of duties of responsibilities from the state. Thus, Sámi small-scale fishers can be the recipients of both Indigenous fishing rights as well as the human rights of small-scale fishers. As illustrated in figure 1, Indigenous rights and human rights overlap, but Indigenous rights pertain less to small-scale fishers than to Indigenous people in general (fig. 1). The relation between the four elements illustrated here (human rights, Indigenous rights, small-scale fishers and Indigenous people) can of course vary from context to context, and is here tentatively rendered to represent this relation in the Norwegian context.

The human rights based approach to small-scale fisheries

What does a human rights based approach to fisheries imply? In the words of Senior Fishery Planning Officer of the Fisheries and Aquaculture Department in the FAO, Rolf Willmann, fish is food, a healthy source of animal proteins, and thus poor peoples’ access to fish should be ensured in the face of competition with industrial fisheries and undermining of customary regimes. On the other hand however, as common pool resources are often overexploited, as is often the case in unregulated small-scale fisheries in developing countries, too much protection of small-scale fisheries may tend to compound the problem rather than prevent it. Overfishing of local resources may again lead to overfishing of previously unexploited resources, and changing the composition of fish stocks, because local fishers have been pushed farther out to sea or to deeper areas in search of food for their families (Willmann 2013). Moreover, even in well-regulated systems, socio-institutional mechanisms may still not prevent starvation. In fact, there can be starvation even under relatively good ecological conditions because of social unjustness (Willmann 2013 with reference to A Sen 1999). Therefore, one needs to take a holistic approach to implementing small-scale fisheries governance and development, and these must be integrated with each other. Some good examples of the implementation of the HRBA are, for instance, the formal recognition of artisanal fisheries, and recognition of collective tenure among marginalized peoples.

Norway: small-scale fisheries development and Indigenous fishing rights

How does Norway do in terms of implementing a human rights based approach in Norwegian fisheries, and in terms of Indigenous fishing rights? When the Norwegian Sámi Parliament was established in 1989, it became a stakeholder representing a variety of Sámi communities, individuals and institutions that together form the Sámi people. With the limited, but increasing power and responsibilities of the Sámi Parliament, the Sámi people could now speak with one voice. From 2005, the Sámi achieved consultative status with the Norwegian state in matters of importance to Sámi culture, livelihoods, and cultural survival. The small-scale coastal fishery in Sámi settlement areas is one such matter of importance, since the way fjord and coastal fisheries are governed, affects Sámi traditional livelihoods and opportunities to participate in and benefit from commercial fisheries. In 1991, the Sámi Parliament entered as one out of many stakeholders onto fisheries co-management bodies, and has slowly developed into one of the decision-making organs in matters not only pertaining to fisheries, but also to spatial and environmental governance of the North Norwegian coastal zone in general.

The legitimacy for inclusion of Sámi fisheries in the national fisheries management sector was established during the 1980s by the Sámi ethno-political movement and by strong criticism against the existing fisheries governance system. Especially the overfishing of vulnerable, local cod stocks was a contentious issue causing conflict between small-scale fishers in traditional Sámi areas, and Danish-seine vessels that were accused of fishing up whole stocks of cod in a few sweeps on the fjords. The conflicts between vessel and gear groups escalated when a sharp increase in Greenlandic seals (harp seal), migrating to the North Norwegian fjords in the middle of the 1980s, reduced fjord fishers’ catches even further. Reduced catches for the small-scale Sámi fishers became a problem when the authorities closed large parts of the previously open coastal fishery through the individual vessel quota system in 1990, where the criteria of access to a quota was based on catch levels from the three to four preceding years. Since coastal Sámi fishers had experienced reduced catches exactly during these years, a whole group of fishers was excluded from access to the increasingly licensed coastal fishery. When the Sámi Parliament raised the predicament of coastal Sámi fishers as their first issue in 1989, the plea for abolishing or changing the quota system was echoed by many politicians and coastal small-scale fishers in general, who were dissatisfied with the closing of the previously open coastal commons (Davis and Jentoft 2001).

The criticism from the Sámi Parliament, Sámi and small-scale fishers, and the North Norwegian public did not go without remedial action by the Ministry of Fisheries. The concept “material basis for culture” gained a foothold in the Sámi fisheries discourse during the 1990s as the dominating approach to thinking about Sámi fishing rights (Smith 1990). The Sámi Parliament was allowed a place on the Advisory Board for Fisheries Regulations (Reguleringsrådet), together with stakeholders from commercial organizations and fishers’ organizations (Sámi Parliament 2004). In 1992, it proposed the establishment of measures such as a Sámi Fisheries Zone to remedy the adversary effects of the quota system for Sámi small-scale fisheries. Even though the fisheries policy zone was not established as the Sámi Parliament had argued for, the Ministry of Fisheries implemented special regulations for fishers in a designated area within the existing regulatory framework. In the post-1989 period, these regulations made it easier for fishers with income from other occupations to participate in the closed fisheries, vessel purchases were eligible for direct financial support from a state fund for small-scale industries governed by the Sámi Parliament, and the Sámi Parliament continually negotiated higher quotas for fishers within the area during the yearly quota negotiations.  In a co-management framework, this can be seen as the beginning of a cooperative phase between the Sámi Parliament and the fisheries authorities where a negotiated Sámi fisheries governance policy was sketched out.

Increasing Sámi participation and integration in fisheries governance

With the consultative status of the Sámi Parliament gained in 2005, the governance relation between the two parties changed also in the field of fisheries. From being one among many stakeholders at the table, the Sámi Parliament was now to be consulted separately and to have considerable decision-making power through giving consent to, or disagreeing with, law proposals and other central governance policies pertaining to Sámi matters. The question of Sámi fishing rights was on the agenda after the government-appointed Coastal Fishing Commission for Finnmark proposed to legislate the historical fishing rights of the Sámi people. The proposal came about as a result of the legislation of land rights of the population of Finnmark to previously state-owned land in the County (Finnmark Act), where the right to seawater and fisheries had been left out. This was treated by the Coastal Fishing Commission in NOU 2008:5. The proposal included control over a share of the national quotas by a co-management body for the fisheries in Finnmark County, where a majority of the Sámi are settled. Moreover, it proposed the recognition of a historical right to fjord fisheries in some territories, a form of sea tenure (the “fjord right”) for fishers in Sámi fjord areas.  During the following consultations the Norwegian government was not willing to acknowledge the historical fishing rights of the Sámi people, but offered to legislate the fishing rights of small-scale fishers in large parts of North Norway in general, and to increase the maximum quota for small-scale fishers in this area with 3,000 tons of cod. The Sámi Parliament made it clear that the question of the historical fishing rights of the Sámi had still not been settled, but consented to the rest of the proposals. The Norwegian government responded that:

“The Ministry is of the opinion that Sámi coastal and fjord fisheries and other small scale fisheries are seen as a natural part of Norwegian fisheries, and that the management of the fish resources in these areas are seen as a natural part of Norwegian fisheries management” (ibid. p. 19).

The Norwegian Parliament in 2012 chose not to recognise the historical fishing rights of the Sámi people in Norway, nor the proposal for territorial fjord rights or sea tenure. Instead of recognising Sámi tenure, a number of alleviating mechanisms were introduced, such as an addition to the Act of Participation in the fisheries, which instituted the right of small-scale fishers (fishing with vessels below 11 meters) to fish with conventional gear, and therefore the possibility to prioritise this group of fishers through quota allocations. The agreement was legislated in the Marine Resource Act, the Act of Participation and in the Finnmark Act in 2012.

A lack of fishing rights recognition

Recognition of customary tenure is one of the principles central in a HRB approach to small-scale fisheries, as noted in the introduction. As the Norwegian case shows, neither Indigenous fishing rights nor a more general “fjord right” as a form of sea tenure has been recognised in the case of Norwegian small-scale fishers, Indigenous or not. However, greater room has been made within the existing framework of the Norwegian fisheries management system to protect small-scale fisheries. What is the reason for the lack of tenure recognition in Norway? Professor Svein Jentoft in a recent paper in the FAO Land Tenure Journal discusses the lack of recognition of a Sámi sea tenure in Norway. His observation is that the proposal is too controversial to be supported by the main fisheries organisations, and that Sámi fishers themselves are also ambiguous about the question. By denying the recognition of any special fishing rights, the commons is kept open and non-exclusive because resources are migratory and vessels are dependent on access to migratory resources (Jentoft 2013; Jentoft and Brattland 2011). If some areas were to be reserved for a group of fishers, this would damage the fisheries industry. This is supported in my own research which illustrates that Sámi small-scale fishers are more than even dependent on access to coastal fishing fields, and are less and less dependent on traditional fishing grounds in fjords, even though this is an important fishery for many (Brattland 2012). The historian Steinar Pedersen is, however, one among many who have argued that without the Norwegian Parliament’s recognition of the Sámi people’s historical fishing rights, based on older acts and grounded in historical usage, any small misstep or omission could seriously damage Norway’s international credibility concerning the safeguarding of Indigenous rights (Pedersen 2012).

The amount of quotas is also dependent on the resource situation, which will not always be as abundant as it is at present, something future resource governance solutions will have to take into account. This means that Indigenous people, as well as small-scale fishers in Norway, are dependent upon support from a wide range of political actors to defend the newly acquired room for small-scale fishers in Norwegian fisheries management. Fishers need to get accustomed to having a new Indigenous stakeholder with decision-making power on the scene, and the SámiParliament needs to get used to its new role as representative of an enlarged small-scale fisher constituency.

Concluding remarks

In many cases, Norway is pointed to as a model for how things are to be done, be it development aid, environmental policies or Indigenous issues. Among Norway’s achievements in the Indigenous rights field are the progressive actions of the Norwegian Parliament in the 1990s through the ratification of the ILO Convention 169, the election of Mr. Ole Henrik Magga to be the first president of the UN Permanent Forum on Indigenous Issues, the establishment of the Sámi Parliament, and not least the implementation of Indigenous rights principles, such as the duty to consult through the Consultation Agreement. Norway has also endorsed the Declaration on the Rights of Indigenous Peoples, but it has not gone as far as recognising Indigenous fishing rights. With lack of recognition of collective sea tenure among small-scale fishers in the North, the contribution in terms of implementing a human rights based approach to small-scale fisheries can be questioned.

There are, however, some fundamental differences between the Sámi small-scale fishers and small-scale fishers elsewhere. Sámi small-scale fishers are part of a welfare system, which does not make them dependent on fisheries as a livelihood. In fact, the level of costs and price of labor is making fish production in Norway much less economically profitable for fishers and producers alike than in developing countries. Competition from aquaculture and cheaper labor markets where fish production is conducted at much lower costs than by Norwegian fishers, and an inability to deliver high-quality, fresh fish at all times and seasons to feed market demands, are much bigger threats to the survival of small-scale fisheries in Norway than poverty, lack of tenure rights recognition, or overfishing. Small-scale fishers in Norway are not at the point of starvation, nor has development been denied to the small-scale fishing fleet. Most importantly, however, is the emergence of a diversity of small-scale stakeholders in the fisheries governance system in the period after the establishment of the 1990 quota system, and the current protection of the right to fish for small-scale fishers within the framework of the existing fisheries governance system. Thus, the current legal protection of Norwegian and Sámi small-scale fishers can be seen as a result of corporative integration of stakeholders into the overall governance structure, which has the effect of changing specific regulations and principles pertaining to small-scale fishers. Is this a human rights based approach to small-scale fisheries adapted to an industrial context?

I argue in my thesis (Brattland 2012) that the increasing integration of Sámi rights and policies into resource governance is producing a new ethno-ecological governance regime that supports the existence of Sámi small-scale fisheries. This does not necessarily mean that Indigenous peoples have increased their power as stakeholders in resource governance, but that states have translated Indigenous rights and policies into their own language, and created governance structures such as consultation procedures, where these are dealt with within the existing corporative structure. Seen relative to the larger human rights and Indigenous context, where tenure recognition and participation as co-managers in resource governance are important principles, the Norwegian integration of Sámi policies in the overall resource governance structure could very well serve as an example of a human-rights based approach to small-scale fisheries adapted to an industrial context. It is certainly not a schoolbook example in the way of implementing Indigenous rights in fisheries. As for a human rights based approach to small-scale fishers, however, Norway’s experience with the Sámi fishing rights issue is an example of how human rights principles can make mechanisms and institutions come about to protect small-scale fisheries. This is a point that Norway could expand upon in international fisheries development contexts and in the on-going process for developing the Voluntary International Guidelines for Sustainable Small-Scale Fisheries.

References

Allison, E., R. Blake, et al. (2012). Right-based fisheries governance: from fishing rights to human rights. Fish and Fisheries, 13 pp.: 14 - 29.
Brattland, C. (2012). Making Sámi Seascapes Matter. Ethno-ecological governance in coastal Norway, University of Tromsø, Faculty of Biosciences, Fisheries and Economics.
Davis, A. and S. Jentoft (2001). The challenge and the promise of Indigenous peoples’ fishing rights--from dependency to agency. Marine Policy, 25 (3), pp.: 223-237.
NOU 2008:5 Retten til fiske i havet utenfor Finnmark. The Right to Fish in the Sea off Finnmark. Ministry of Fisheries and Coastal Affairs, Oslo.
Jentoft, S. and C. Brattland (2011). Mot en samisk fiskeriforvaltning? . Hvor går Nord-Norge? Tidsbilder fra en landsdel i forandring. . S. Jentoft, J. -I. Nergård and K. A. Røvik. Stamsund, Orkana.
Jentoft, S. (2013). Governing tenure in Norwegian and Sámi small-scale fisheries: from common pool to common property? Land Tenure Journal 1/2013; FAO.
Pedersen, Steinar (2012). The Coastal Sámi of Norway and their rights to traditional marine livelihood. Arctic Review on Law on Politics, no. 3/2012.
Sámi Parliament (2004). Samisk fiskerimelding. White paper on Sámi fisheries. Sámi Parliament, Karasjok.
Sen, A. (1999). Development as freedom. Oxford University Press, Oxford.
Smith, C. (1990). Samiske interesser og fiskerireguleringer. Oslo, Det Kongelige fiskeridepartement.
Willmann, R. (2013). A human rights based approach in small-scale fisheries – a quest for development as freedom. Keynote speech at the MARE conference, Amsterdam. http://marecentre.nl/people_and_the_sea_7/

FDCIP 2013 Øyvind Ravna

The Finnmark Commission investigation: An adequate way of completing Norway’s obligations to identify Sámi rights to lands and waters

Øyvind Ravna
Professor at UiT The Arctic University of Norway, and Adjunct Professor at University of Lapland.

Øyvind Ravna
Øyvind Ravna

The following quote is from Sagai Muittalægje (Sigerfjord, 1 March 1906). Isak Saba was the first Sámi elected to the Norwegian Parliament (1907–1912), and he is also known for having authored the text of the Sámi National anthem “Sámi soga lávlla.”

Will not the grass grow just as well on the meadow if you speak Sámi as Norwegian? Is it not enough that the Sami had to buy the land, which from ancient times, had been theirs?

History leading up to the Finnmark Act

The Alta Case
The Alta Case

The Sámi Rights Committee (1980 –

In 1984, the Sámi rights commission published a report; in section 18 “About the Sámi legal position”; the first two points of the mandate were to examine the following:

  1. the question about the Sámi people’s legal position in relation to lands and waters
  2. to evaluate and suggest “how to secure the Sámi opportunities to utilize natural resources in their areas of habitation, while also recognizing the non-Sámi population’s interests

[The third point was to investigate the need for constitutional protection of the Sámi language, culture and way of life and the fourth related to economic consequences].

In addition, the Norwegian Constitution article 110a, contains the following:

“It is the responsibility of the authorities of the State to create conditions enabling the Sámi people to preserve and develop its language, culture and way of life”

(Official translation from http://www.stortinget.no/en/In-English/About-the-Storting/The-Constitution/The-Constitution/ (accessed 9 September 2013).

Finally, ILO-169 concerning Indigenous and Tribal People in Independent States
Article 14, contains:

  1. The rights of ownership and possession of the peoples concerned over the lands, which they traditionally occupy, shall be recognised. …
  2. 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.
  3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.

Requirements for adequate procedure
Case law from the ILO monitoring bodies shows that the issue of adequate procedures within the national legal system to resolve land claims by the indigenous peoples, are considered by 1) access to the court for the concerned indigenous People and 2) thorough investigation of the evidences and in-depth application of the law.

The aim of this presentation is to examine how Norway is fulfilling its obligations to identify Sámi rights to lands and waters.

The Finnmark Commission is the most important “instrument” for carrying out the obligations of the Norwegian state to identify these rights. Obligation. This means that it works in the interest of examining how to identify Sámi rights to lands and waters. Thus, it finds adequate ways of fulfilling Norway’s obligations to identify Sámi rights to land and waters.

Norway is considered to be a driving force in the recognition of Indigenous rights, the
situation here is of interest internationally, and can be seen as a “best practice.”

The History of the Finnmark Act

The majority of the Parliamentary Committee of Justice (2004–2005) concluded the following:

  • Norway is required to identify so called existing rights to lands and waters in Finnmark to meet the obligations in the ILO-169 Article 14.
  • Thus legal clarification had to be included as a key element in the Finnmark Act.
  • But the proposal of the Sámi Parliament to include identifying of Sámi lands according to the categories of the ILO-169 article 14 in the investigation was rejected.

The Finnmark Act finally ended up mandating an investigation of private rights of use and ownership to lands both individual and collective in character.

Finnmark Act, Section 5
Through prolonged use of land and water areas, the Sami have collectively and individually acquired rights to land in Finnmark.
In order to establish the scope and content of the rights held by the Sami and other people on the basis of prescription or immemorial usage …, a commission shall be established to investigate rights to land and water in Finnmark and a special court shall be set up to settle disputes concerning such rights, cf. chapter 5.

The investigation bodies:

  • The Finnmark Commission (to investigate, identify and recognize land rights)
  • The Uncultivated land tribunal of Finnmark (to settle disputes arising after the investigation) An investigation procedure that meet the requirements of ILO Convention No. 169

The Sami Rights Committee II assumes that one clearly can conclude that the Finnmark Act’s system as a whole must obviously be considered to meet the requirements of ILO Convention No. 169, Article 14 (2) and 14 (3), as evidenced in the following:

“The solution chosen in Finnmark must be considered to be in line with Norwegian’s goals of loyalty fulfill the aim of the Convention.”

I find no reason to disagree with that. Thus, it is not the selected procedures in the Finnmark Act as such that must be questioned in order to answer the question raised in the title, but the application of law. I will therefore look into the results of the three first reports of the Finnmark Commission (herein FB) before I discuss some observations about the application of law.

Investigation fields: Stjernøya and Seiland and Nesseby

The first Finnmark Commission report concerns the islands of Stjernøya and Seiland in the Alta Fjord in West Finnmark. The area covered is inhabited both by a Sámi and a non-Sámi coastal population and these areas are also summer pastures for nomadic Sámi reindeer herders. In addition, there is also extensive mining on one of the two islands.

In was also decided that the municipality of Nesseby should be investigated as the second field. The field consists of a large number of communities that are shared by a fjord. It has 900 inhabitants (2011), many of them Sámi, and an area of ​​1436 km2. The selection of the field is not reasoned in the report, but it is natural to assume that it is emphasized that it has a relatively large Sámi population etc.

The Completed Investigation Fields of the Finnmark Commission

Property rights in field one: Seiland and Stjernøya


The Commission does not recognize collective property rights in any part of the field. This applies both to the Sámi reindeer herders and to the Sámi and non-Sámi permanent residents. Concerning individual property rights, the Finnmark Estate (FeFo) owns all the formerly state land in field one, with the exception of one parcel of 0.02 km2.

Property rights at field two: Nesseby

The conclusion of field two, which contains a municipality that is part of the Sámi administrative area, is similar with those for field one concerning collective property rights:  The Finnmark Commission concluded that neither reindeer herders, as opposed to field 1, live in the municipality year-round, or the local people at-large, have acquired any form of collective property rights.

Concerning individual property rights, FeFo (Finnmark Estate) own the investigated area, except for a private parcel of 0.007km2.

Property rights on field three: Sørøya

The conclusion of field three is similar with those for the other fields concerning collective property rights:  The Finnmark Commission concluded that neither reindeer herders nor local people have acquired collective property rights. There also were no individual property rights identified in this field.

Collective Rights of Use (all the fields)

For the all the three fields, collective rights to graze livestock, harvest wood and peat, fishing, hunting and trapping, and collecting eggs, down and berries are recognized, where the Finnmark Commission generally and similarly for all three fields, concluded that the rights of the local population have an independent legal basis:

“Concerning the resident local population, these rights [described in the Finnmark Act § 22 and 23] have an independent legal basis beside the law, similar to the common rights in southern Norway, and similar to the reindeer husbandry rights in the areas where there has been reindeer husbandry historically.”

Collective Rights of Use (all the fields)

However, the Finnmark Commission conclusions do not imply any changes in the actual status:

“Although these rights, to some extent, have an independent legal basis, they are codified in the Finnmark Act, and therefore subject FeFo disposal authorizations.”

This means that it is FeFo who is mandated to govern, regulate and decide to what extend the locals are allowed to enjoy their independent rights. However, the Finnmark Commission poses a limitation on FeFo’s regulation, as other uses of the resources cannot displace local use.

To have Exclusive Rights of Use, there must be a special legal basis.  
“If the locals are to be allowed to have an influence on the extent of use, the rights must have a special legal basis, established by immemorial usage or prescription time has exercised a use that goes beyond the limits that are currently enshrined in the Finnmark Act.”

This means that rights established before 1775 [when the state ownership appeared] have a weaker protection for the landowner [FeFo] or governmental regulation than rights acquired by prescription or immemorial usage after the state land management in Finnmark started.

It also means that the Finnmark Commission, in practice, does not recognize more extensive collective rights (of use or title) than already recognized in the Finnmark Act SS 22 and 23.

Individual Rights of Use
Individual rights of use are not recognized, with the following three exceptions:

  1. the right to a mount for salmon nets at Seiland in field one;
  2. this concerns a re-allocation of leasing rights to parcel by the Varanger Fjord;
  3. the right to have a turf hut in Čoskajeaggi in field two.

In addition, families have acquired all-year-round reindeer husbandry right in parts of the field 3.

Rights of use (example from field three)
The Finnmark commission finds that the Akkarfjord regional community has not acquired collective ownership rights north of the line Oterbukta – Saksfjorden. It has also not acquired exclusive collective use rights for local people beyond the general right, which the Commission has determined, was acquired on Sørøya based on immemorial usage. 

The Finnmark Commission, however, has assumed that different groups of locals in the South Island have acquired collective rights to use various forms of cultivated areas on the part of the island, which is FeFo property, where the population who belongs to the area has a preferential right to use the local resources.

The ownership evaluations/application of law:
The Finnmark Commission concluded that the local people’s use of lands in the three investigation fields is as extensive, flexible and long-lasting as the  land and resource use of the locals in Manndalen, who achieved recognition of their rights in the Supreme Court Case of Svartskogen (NRt. 2001 p 1229). However, it concluded that the state’s disposal (activities) have been so extensive that the exclusive, local rights, have been extinguished.

It is not the lack of continuity and intensity of use that creates problems for legal recognition. It is also not the use of land and resources by others, but the State or Government allocations /dispositions that extinguish local rights. The State governance and exercise of ownership is thus given law-making significance.

Finnmark Commission’s application of law: The ownership evaluations
As shown, it is the State’s active disposals that have led to the local population in the investigation fields, in practice, not having recognized rights beyond what everyone has in Finnmark Act, § 22 and 23. More specifically, FC assesses these in relation to the corresponding dispositions in Svartskog case where the locals acquired title.
It is thus interesting to see to what extent it is proved that the government has allocated a greater extent in the study fields than in Svartskogen.

Governmental actions in Svartskogen, Manndalen, Troms County
The Government actively bought Svartskogen from a private society (Ophævelse af Leilændingvæsenet in Skjervø) in 1885. Since the 1920s, the Government has clearly expressed its ownership and possession, including by posting announcements on the church hill and by posting at other places etc. It has also used police reports that express ownership and have entered into a significant number leasehold agreements for hay harvesting on uncultivated land and then rejected applications for claims for cultivation of land. Thus, the state has engaged in a reasonably wide-ranging state of dispositions.

Governmental actions in Nesseby

An example is the hay fields that are leased out on state outlaying fields in Nesseby and Svartskogen, respectively.

The Evidence assessments
Evidence assessments were completed as whole without significantly entering into and assessing each specific area significantly, such as natural demarked areas such as river valleys, etc.

This means that the assessments are too broad and summarily lack concrete analysis of particular areas.

The Evidence assessments
The Finnmark commission is quoting the Supreme Court’s description of the management of Svartskogen, concluding in the same way for all the three fields, stating that:

“There is nothing in the material that is provided or submitted to the Commission, which suggests that the population as a whole or in part of the field (Stjernøya-Seland/Nesseby/Sørøya respectively) and up to present time have exercised some form of control over the local resource exploitation that can be compared with this.” (Rapport 1,p. 67, R 2, p. 68 and R 3, p. 54, respectively)

Is it evident that the government has allocated more actively in the three study fields in Finnmark than in Svartskogen?

When the question finally had to be answered whether the government has brought sufficient evidence that it has allocated more actively in the three study fields than in Svartskogen, it is difficult to answer affirmatively based on the present evidence.

How to assess governmental allocations

Case law shows that it may be questioned whether it is appropriate to place such emphasis on governmental actions. In other cases, the courts aim to “repair” unintended consequences of government allocations, rather than use them as a reasons for limiting exclusive rights use by the local people, see e.g. Rt. 1991, p 1311 (Beiarn-Skjerstad).
Based on the State’s active forest management, which had led to the farmers losing their logging rights in an earlier judgment, the Supreme Court asked:

“is it reasonable that farmers in Nordland shall have a weaker position when it comes to utilization of state unregistered land than farmers otherwise in the country?”(p. 1321).

The Sámi Rights Committee II has considered this statement in its investigation of a management regime for state lands in Nordland and Troms “as a relatively clear call for the legislators to consider the legal situation further.” Based on this, the committee has proposed to legislate:

“the right to cut timber for fire wood and other agriculture-related household needs, according to logging fields recommended by the outlying field board” (NOU 2007: 13 Den nye sameretten p. 701).

After the evidence assessment and application of law, it is implied that
The Finnmark Act section 5 (1), has not been met in any places from the three first investigation fields when it concerns collective use and property rights. It has been applied to a very small extend for individual rights. The previous regime of state ownership, which have been contested of many, has continued under the FeFo regime.

Although the presumption in the Finnmark Act s. 5 (1) has not been met any place in the first three fields, so far there has not been a square meter of Sámi land identified.
It is far too early to conclude that the Finnmark Commission investigation is an inadequate way of completing Norway’s obligations to identify Sámi rights to lands and waters.

With all due respect for the application of law, it must nevertheless be allowed to question whether the Finnmark Commission investigation meets ILO-169 requirements for thorough examination.  In sum, I will emphasize that it is great that Finnmark, long after the rest of the country, finally got a review of the legal systems in outlying areas.

References

Pedersen, Steinar «Statens eiendomsrett til grunnen i Finnmark – en del av den interne kolonihistorie» in Harald Eidheim (ed), Samer og nordmenn (Cappelen 1999) pp. 15–38 [37]. Isak Saba (1875–1921)

FDCIP 2013 Fay Kelly

Comments on the new Guidelines for the Norwegian Foreign Service on the Rights of Indigenous Peoples

Fay Kelly
Rainforest Foundation, Norway

My name is Susan Fay Kelly and I work for Rainforest Foundation Norway.  Rainforest Foundation Norway’s mission is to protect the remaining rainforests of the world and secure the human rights of Indigenous peoples and other forest-dependent groups. An understanding of the close relationship between local communities and the forests and its resources must be at the core of any strategy to protect the forests. The World Commission on Forest and Sustainable Development has estimated that 350 million of the world’s poorest people depend almost entirely on forests for subsistence and survival. At least 60 million of the forest peoples are Indigenous. Forest-based Indigenous peoples have strong social, cultural and spiritual bonds to their ancestral territories. If the forests disappear, these people lose not only their livelihoods, but also essential elements of their culture and identity. Indigenous peoples have fundamental rights to their territories, and forest protection strategies must therefore be rights-based.

Moving on, I would like to say that there is a lot of positive wording in the new guidelines developed by the ministry of Foreign Affairs. In the introduction, the former Foreign Ministers of Foreign Affairs and Development state that Norway is to be a promoter and protector of Indigenous peoples rights and Indigenous peoples living conditions all over the world. And the truth is that internationally Norway is indeed a strong promoter of Indigenous peoples’ rights. We hope that the new government will continue with these efforts.

The Rainforest Foundation Norway is happy to say that the Ministry of Foreign Affairs has consulted us during the process of finalizing the guidelines. Our main concern when we saw the new guidelines was the fact that they were supposed to replace the guidelines from 2004 and seemed to be an entirely different kind of document. Where the old guidelines stated strategic and political goals for Norway’s work within the field of Indigenous peoples, the new guidelines were in every respect non-political. Instead, the new guidelines proved to be in large a descriptive document about the human rights system concerning Indigenous peoples.

The Rainforest Foundation Norway had a meeting with the Minister of Foreign Affairs, as well as corresponding with the state-secretary, explaining our concerns that replacing the old guidelines with a non-political document would seem like a weakening of the government’s position on Indigenous peoples’ rights. Luckily, our concerns were understood, and in the introduction to the new guidelines it is now clear that these do not replace the guidelines of 2004, but are in addition, and that the Minister of Foreign Affairs will consider the need for an action plan focusing on Indigenous peoples’ rights after the World Conference on Indigenous peoples in 2014.

The document we now have before us is a good descriptive framework that can work well as a first introduction to Indigenous peoples’ rights.  Rainforest Foundation Norway sees the need for such short informative guidelines that raise the awareness and provide direction in the promotion of Indigenous peoples’ rights. In the guidelines, the MFA states, “These guidelines seek to ensure that Norway pursues a coherent, integrated policy that takes into consideration the rights of Indigenous peoples.” However, the new guidelines are first and foremost guidelines for the Ministry of Foreign Affairs and their diplomatic and consular missions, as well as the Norwegian Agency for Development Cooperation, and we fail to see how this document may contribute to ensure the overarching policies of Norway. The field of Indigenous peoples’ rights is much larger than what these guidelines are able to communicate and are able to ensure. The new guidelines include no strategic assessments or signals concerning what Norway will focus on with regards to Indigenous peoples in the future – neither when it comes to financial support, thematic or geographical areas of focus, or areas where there is particular need for efforts. Indigenous peoples’ rights are treated in many different forums and in different arenas and Norway should have a strategy that suggests how the country will focus its efforts. And it is important that such a strategy is created in the not-too- distant future, as the old guidelines are now almost ten years old and a lot has happened within the field of Indigenous peoples rights during the last decade. Thus, Rainforest Foundation Norway would like to take the opportunity to stress the importance of indeed creating a new document that is political and strategic.
Going a bit more into the document, there are mainly two things I’d like to comment upon content wise. One is the checklist. We consider such a checklist a useful tool for the Minister, and not least their diplomatic and consular missions. However, it is not clear to us what happens when someone “checks off” one or more points on this list. Are there any strategies in place that describes what should be done in such a situation, or will it be up to each and everyone to then decide what to do?
The second thing I would like to highlight is the inclusion of a separate part of the guidelines that deals with business and human rights. In our point of view, this is a highly relevant and positive inclusion. In addition to being very informative, this part of the guidelines is more concrete in stating what Norway should do when dealing with Norwegian businesses that operate in countries with Indigenous peoples. The Rainforest Foundation Norway also finds it positive that Norwegian authorities will prepare an action plan that deals with how Norway will follow up the UN Guiding Principles on Business and Human Rights. The newly written report by Mark B. Taylor from Fafo, that will be the foundation on which the action plan is built, draws attention to many interesting aspects on how the different parts of the Norwegian Government ensures that the business sector respects HR. As far as we’ve heard, a first version of the action plan should be ready by the end of this year and we’re very much looking forward to reading it at contributing with our points of view.

With regard to the relationship between Indigenous peoples, business and HR, we also find it extremely positive that the Minister of Foreign Affairs included one important paragraph suggested by us. This is: “If agreement is not reached with the local community, this can lead to protests, demonstrations and/or legal proceedings, and thus to delays and additional costs for the project. If consultations with Indigenous peoples are not carried out, Norway will not support the project in question, and Norwegian companies will be advised to pull out of it.” That the Minister is so clear on this is a strong signal to Norwegian companies that operate in countries with Indigenous peoples, and we would like to commend the Ministry for its strong position on this. We sincerely hope that the action plan will contain similar strong wording.
With the new government, there will be a few changes, as we all know. For instance, Norway’s International Forest and Climate Initiative is being moved from the Ministry of Foreign Affairs to the Ministry of Environment. There might be many good reasons for this, but the Rainforest Foundation Norway would like to stress the importance of factors outside of the mainly climate related ones in the initiative. This means, among other things, to take Indigenous peoples’ rights into consideration in this work. Therefore, it is important that expertise of Indigenous peoples rights also exists in the Ministry of Environment. And in all other Ministries that do work that touch upon fields that are related to Indigenous peoples.
In the governmental platform, the new government has a positive focus on human rights. However, the Rainforest Foundation Norway is worried that this focus is stated to be primarily on civil and political rights. In our point of view, one cannot only focus on one set of human rights. One set of human rights must be understood in the context of other sets. For the most part, each set of rights is dependent on the other. For example, economical and social inequality affects civil and political rights. Class – defined as resources, social status and economy – as well as ethnicity, affects who has access to political and judicial arenas, and thus have their civil and political rights met. The government must also focus on economical, social and cultural rights, and not least: on the collective rights of Indigenous peoples. We hope this is a message Mr. Willie can take home with him from this conference.

FDCIP 2013 Comments from GÁLDU

Comments from GÁLDU

Professor Bjørg Evjen
Board member, GÁLDU- Resource Centre for the Rights of Indigenous Peoples, ­Norway

Firstly, I would like to thank Mr. Petter Wille for introducing the New Guidelines for the Norwegian Foreign Service on the Rights of Indigenous Peoples.

I would also on behalf of Gáldu thank the Ministry of Foreign Affairs for including our Resource Centre for the Rights of Indigenous Peoples during the drafting of these guidelines.

As emphasized by both Mr. Wille and the guidelines themselves; Norway has still an important role to play in the protection and development of Indigenous peoples’ rights worldwide. Knowledge about Indigenous peoples, their situation, their history and their human rights, is of paramount importance for anyone who engages him or herself in international politics, business, or law.

The new guidelines are important, as they stress the need for more knowledge about Indigenous peoples’ rights within the part of the state that deals with international politics and the people that are strongly involved in various forms for diplomatic work, peace dialogue, and development policies. Further, these guidelines express a strong commitment from the Norwegian government to continue to contribute to the promotion of Indigenous peoples and their rights worldwide. We strongly hope that the new government of Norway will follow up this commitment.

The 2007 Declaration on the Rights of Indigenous Peoples is the most recent, most up-to-date internationally accepted document that recognizes Indigenous people’s rights. I am glad that the guidelines have such a clear reference to the UNDRIP, and that the two former ministers, Jonas Gahr Støre and Heikki Holmås, so clearly state that this Declaration must be implemented, both nationally and internationally.

These guidelines are also an example for other states, one might even call this an example of “best practice,” all depending on how the guidelines are being implemented within the Foreign Service and the ministry itself.

For Gáldu, it has been important to give our input for these guidelines, based on the mandate that Gáldu has, which is to, inter alia, strengthen the knowledge about Indigenous peoples’ rights within our own country, but also beyond our national borders. We have stressed the importance of self-determination, prior, informed consent and consultations as a fundamental right for all Indigenous peoples. Although we have not reached all our goals yet, the situation in Norway can serves as a model for other countries.

It is most important that Norway through its Foreign Service ensures that Indigenous rights are taken care of and call attention to the right forums, such as Universal Periodic Review in the UN system.

These are guidelines given by the state, thus they must be understood in a general manner. Nevertheless, it is meant to guide people in meeting with or approaching a different culture or cultures, cultures representing a different view of the world, and with different priorities. Important knowledge could be of a different kind from what we know; and more importantly, what is and what is not legal.

In general, the guidelines could to a greater extent encourage the Foreign Service to have a dialogue with Indigenous peoples and seek their perspectives on their own situations.
A checklist of twenty-two bullet points for the diplomatic and consular missions is intended to help increase awareness of the situation of Indigenous peoples. The answers to these questions will help identify issues and challenges that should be addressed. The answers will also reflect the given situation.

The checklist reveals a thorough understanding of the situation of Indigenous peoples, but with a couple of exceptions. The situation of women is mentioned only once, and in the very last bullet point, (and children are not mentioned at all). However, I must add that women’s situation is included when it comes to consultations; it states that it is important to include Indigenous women in consultations. Many women face double discrimination, both as women in the Indigenous community and as Indigenous people in society at large. The reason for this being mentioned in the very last paragraph could be discussed, but I will not go more into it now. Fine in itself that this is said, and in addition, that the situation of women in our own country could be a mirror to reflect on in other parts of the world. The situation of children is missing.

As to consultations, this is an important means by which Indigenous peoples should be consulted in decision-making, which may affect them directly. This could be an effective tool if the Indigenous people in question is accepted as such and their rights are in place. If not and if the Indigenous people are also not organized, the situation will be different. It should be mentioned that the UN has established more organizations to help implement Indigenous peoples’ rights nationally and internationally, namely, Permanent Forum and the UN Special Rapporteur for Indigenous Rights.

The process of meeting or including Indigenous peoples is more than saying “we see you and want you to sit by the table with us taking part in the consultations.”  The multicultural meeting is about communication and sharing a common understanding of the point of departure and the purpose of the meeting.  In this it is not sufficient to turn to international declarations or law to pave the way for this to happen.

In the guidelines it reads: “Achieving consent or agreement is not an absolute requirement, but the authorities are to enter into the process in good faith and with the goal of achieving consent or agreement” (p.18).

Gáldu questions if this is a too strongly said, given the differences between states and Indigenous peoples on the matter, and the different cultural understandings that lie behind the differences.

We know the major challenges Indigenous communities are facing due to globalization and increased industrialization of Indigenous peoples traditional territories. Norwegian companies are managing their businesses all over the world, and they also need to be reminded of the obligations they have, not only to comply with national legislation, but also to comply with international human rights law.
We hope that these guidelines within the Foreign Service will strengthen the knowledge and awareness about Indigenous  peoples, their way of life and their rights, and that this could also lead to inspiring other ministries to develop their own guidelines for how their representatives should properly interact with Indigenous  peoples, representative bodies of Indigenous  peoples, and Indigenous  communities.

FDCIP 2013 New Guidelines

Introducing the New Guidelines for the Norwegian Foreign Service on the Rights of Indigenous Peoples

Mr. Petter Wille
Ambassador/Special Envoy of the Norwegian Ministry of Foreign Affairs

It is a pleasure to be here today and to stand behind the Sámi flag; I have had this flag in my office for over ten years.

Last year there was a seminar in Oslo with the purpose to take stock of the developments over the last decade in the UN’s work for Indigenous people. One of the conclusions is that a lot has been achieved and there have been many positive developments. The most important developments when it comes to standard setting is the adoption of the UNDRIP and ILO 169, also the Conventions on the Rights of the Child, which also has a provision on the rights to culture for Indigenous children. In addition to the standard setting, we have also seen that the general attention paid to Indigenous issues has also increased significantly and the UN now has three mechanisms focusing on Indigenous peoples: the Permanent Forum for Indigenous Issues, the Special Rapporteur on Indigenous Issues; and the expert mechanism established by the Human Rights Council. Thirty years ago, there was only a working group in the UN called the Working Group on Indigenous Populations and the old sub-commission on the protection of minorities. Indigenous issues are also on the agenda in climate change negotiations and other international processes, for example forest initiatives, business and human rights. We have come a long way.

Promoting the rights of indigenous peoples
Promoting the rights of indigenous peoples

In 2014, the UN will hold a high level meeting on the rights of Indigenous peoples. Despite these achievements, we must say that there is no room for complacency. Indigenous peoples are still among the most marginalized populations in many parts of the world. Norway will therefore continue to give a high priority to Indigenous issues. These activities will not only involve the Ministry but also many of our foreign representatives abroad. So this is one of the reasons why we have issued these guidelines and you have now had an opportunity to see them. The guidelines have been sent out and we were lucky enough to get them printed in time to send them here.

Why do we issue these guidelines?

These guidelines seek to ensure that Norway pursues a coherent, integrated policy that takes into consideration the rights of Indigenous peoples. Our overall goal is to foster respect for the rights of Indigenous peoples by ensuring that the Norwegian Foreign Service:

  • is well-informed on this matter, and focuses on Indigenous peoples in all relevant contexts;
  • works actively to put Indigenous issues on the agenda in both bilateral and multilateral context;
  • bases development activities supported by Norway on relevant UN conventions, as well as the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (No.169) and the UN Declaration on the Rights of Indigenous Peoples;
  • helps ensure that the rights of Indigenous peoples are integrated into relevant international normative work;
  • focuses on the rights of Indigenous peoples in business activities that are supported by Norway, and in dialogue with Norwegian companies operating in countries that have Indigenous peoples.

The guidelines also have checklists:

  1. Are there Indigenous peoples in the country?
  2. Are they recognized as Indigenous peoples by the authorities?
  3. Does the legislation of the country reflect their international obligations towards Indigenous peoples?
  4. How are the living conditions for the Indigenous peoples?
  5. Is there political participation by Indigenous peoples?

The purpose of this list is to help increase awareness of the situation for Indigenous peoples. We often talk about awareness, but when it comes to Indigenous peoples, we know that it is very important because there is so little awareness about Indigenous peoples’ rights. Other questions refer to living conditions and whether they have recognition of cultural and linguistic rights. Other important questions are: How are they organized with regard to the authorities, and what is the situation for Indigenous women?

Who are Indigenous peoples?

Like some of you in the audience, I was involved in the drafting of the UNDRIP. When we started with this work in the UN, some states came out and said, “This is not relevant for us because we don’t have Indigenous peoples in our country.” Some countries worked for a definition that would exclude their Indigenous peoples from the definition. We ended up with no definition, which I think was the only viable solution. But it is still important to have some sort of guidance on who we are referring to when we talk about Indigenous peoples.

There is no internationally accepted definition of the term “Indigenous peoples” but in
Article 1b of Convention 169, it states:

This Convention applies to peoples in independent countries who are regarded as Indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. (ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries, no. 169)

Another important part of our work, going back to the 1980s is on standard setting. Standard setting instruments include the following, among others:

  • ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent countries
  • UN Covenant on Civil and Political Rights
  • The International Convention on the Elimination of All Forms of Racial Discrimination
  • The UNESCO Convention on the Protection of the Diversity of Cultural Expression
  • UN Declaration on the Rights of Indigenous Peoples (UNDRIP)

Promoting the rights of Indigenous peoples in Norwegian development cooperation will continue to include the following: bilateral cooperation; cooperation through NGOs; multilateral cooperation; and large-scale Norwegian priority initiatives.

Reports
Slide 11

FDCIP 2013 Indigenous Movement in Russia

New Political Realities for the Indigenous Movement in Russia

Dmitry Berezhkov
UiT Master Student and Former Vice-President of the Russian Association of Indigenous Peoples of the North, Siberia (RAIPON)

The definition of “indigenous” without the numerical qualification does not exist in Russian legislation. So according to the Russian law, the term “Indigenous small-numbered peoples of the North, Siberia and the Far East of the Russian Federation”1 is a collective term for more than forty Indigenous peoples with a population of less than 50,000 each. These peoples inhabit the Arctic and Asian territories of Russia.2 The total number of the Indigenous peoples of the Russian North is less than 0.2% of the Russian population in total and about approximately 250 – 300 thousand individuals. At the same time, Indigenous peoples of the Russian North historically inhabit huge territories covering around two-thirds of the Russian territory from Kola Peninsula in the West to the Bering Strait in the East. Their traditional livelihood is based on fishing, hunting, reindeer husbandry and gathering. More than two thirds of them continue to live in rural areas where these activities are indispensable sources of food and income. Due to their traditional livelihoods, most of the Indigenous peoples of the Russian North, especially those who preserve a nomadic way of life, need much more territory for subsistence than the other populations.

After the collapse of the Soviet Union and its infrastructure, economy and forms of governance3 the dependency of Indigenous peoples from traditional economies increased and became even more important than in Soviet times. Although the economic situation in the Russian Federation has developed substantially during the past thirteen years, the Indigenous peoples in Russia remain one of the poorest parts of population and their social and economic development, as well as their life expectancy, is far below the national average.4

Most territories which are inhabited by Indigenous peoples are rich in natural resources, including oil, gas and minerals and they are heavily affected by large energy and mining projects such as pipelines, hydroelectric dams, gold mining and other forms of resource extraction. The Russian Arctic Macro-region traditionally plays a significant role within the Russian economy: 80% of Russian natural resources belong to that region; 60% of Russian natural resources produced in the Russian North including 93% of natural gas, 76 % of oil, 100 % of diamonds and platinum, 90 % of nickel, 63 % of gold etc.5 Many experts, including representatives of Indigenous peoples themselves, note that Russian legislation includes rather strong state obligations to protect Indigenous peoples’ rights to resources, culture, education, self-governance and participation in decision making.6 But the biggest challenge remains the implementation of the formal legal requirements.

The legal context of Indigenous peoples’ rights in Russia consists of the articles of the Russian Constitution, and several federal and regional laws. The most important is Article 69 of the Russian Constitution that guarantees the rights of the small numbered Indigenous peoples in Russia according to international law. There are also three federal framework laws:

  1. On the guarantees of the rights of the Indigenous small numbered peoples of the Russian Federation (1999);
  2. On general principles of the organization of communities [Obshinas]7 of the Indigenous small numbered peoples of the North, Siberia and the Far East of Russian Federation;
  3. On Territories of Traditional Nature Use of the Indigenous small numbered peoples of the North, Siberia and the Far East of the Russian Federation (2001).

These laws establish the framework of cultural, territorial and political rights of Indigenous peoples and their communities in the Russian Federation. There are also several references on Indigenous peoples in sectorial legislation, for example, in the Federal law on fishing, and the Federal law on hunting etc. It is also important to note that Russia has not ratified ILO Convention 169 and abstained from voting to adopt the UN Declaration on the Rights of Indigenous Peoples. The framework of this article is not supposed to describe this legislation in detail, but it is obvious that Russia has a legal basis to protect Indigenous peoples’ rights.

Indigenous movement in Russia

The Indigenous movement in Russia was born in the late 1980’s when the Soviet era was coming to an end. The first leaders of the Russian Indigenous movement were the artists, poets and other representatives of cultural intellectuals, which started public activity for issues surrounding Indigenous culture and revival of traditions.

The first organizations of Indigenous peoples were created in the Russian regions. In March 1991, on the first Congress of Indigenous peoples of the North, their delegates had created the Russian Association of small-numbered Indigenous peoples of the North in the Soviet Union that later received the abbreviation of RAIPON. From the beginning RAIPON united twenty-six Indigenous peoples of the North and other peoples entered RAIPON while the state recognized these peoples as Indigenous and included them into the special “United list of the small numbered Indigenous peoples of the Russian Federation.”

Today RAIPON is an umbrella organization for the small-numbered Indigenous peoples of the North, Siberia and the Far East in Russia that united and represent forty-one different Indigenous peoples8 in twenty-eight regions of Russia9 and works to protect their rights to lands, traditional natural resources, culture, languages etc.

Until the end of the 1990’s, RAIPON had been mostly the union of supporters and had no strong structure and permanent office in Moscow. The first presidents of RAIPON were the famous Indigenous writes Vladimir Sangi and Eremey Aipin. But in 1997, a professional politician won the elections in RAIPON from Yamal, the deputy of State Duma – Sergey Kharuchi10. He managed to rebuild the work of RAIPON and organized the professional NGO that specialized in the area of Indigenous peoples’ rights. The permanent office in Moscow was created, RAIPON had started to create a network of information centers in regions and lobby the adoption of the three framework laws: “On guarantee of the rights …”; ”On obshinas …”; and “On territories of traditional nature use …”.

Indigenous legal rights on resources and lands were the key areas of the activity of RAIPON during the last fifteen years. Unfortunately, as analysts declared, there is no significant positive shift in these issues up to today. For example, the federal law “On territories of traditional nature use …” is not implemented yet on the federal level, despite the fact that it was adopted thirteen years ago. No one territory of traditional nature use has yet to be recognized on the federal level.

The new president Putin initiated the process of centralization of the federal powers in the country in 2000. The biggest Russian businesses have also been consolidated within the hands of the people who have strong connections with the authorities. At the end of the first decade of the 21st century, big business desired to extend their sphere of influence and find new opportunities for income and lobbied the federal government to change the resource legislation and reduce the ability of local authorities and communities to influence decision-making within the issues of territorial economic development.11

For example the legal requirements on ecological expertise was significantly changed to make it easy for businesses to organize new mining or infrastructure projects on new territories. Several regions12 with Indigenous title and Indigenous populations, like Koryak Autonomous Okrug or Taimyr Dolgan-Nenets Autonomous Okrug were united with the bigger southern regions under pressure from the federal government with idea to strengthen the controllability of the regions. The most damage Indigenous peoples received was when government changed the laws “On fishing …” and “On hunting” in 2008. According to the new rules, all the territories for hunting or fishing have to be distributed through auctions only. Thus, businesses received the opportunity to buy the lands for long periods of up to forty-nine years. Many Indigenous communities lost their traditional lands since that time.  Since the second half the last decade, there were also many other negative changes for Indigenous peoples in legislation and policy on the federal and regional levels. Indigenous peoples lost their role to participate in territorial commissions, which distributed the lands for economic development; they lost quotas to elect their own deputies in regional parliaments, etc.

The Indigenous community of Russia was strongly against these new tendencies and RAIPON, as a leading organization, expressed this opinion widely on the federal and international levels and actively criticized the federal government for this policy. Since 2009, after the VI Congress of RAIPON, the tensions have started between RAIPON and the Federal Ministry of Regional Development, that is the responsible department for the state national policy in Russia. The most controversial topic became the issues of traditional Indigenous lands and resources.

The Ministry of Regional Development tried to find or create the alternative federal organization of the Indigenous peoples of the North in Russia. But this attempt had failed. So then the Deputy Minister of Regional Development, Maxim Travnikov, who was responsible for Indigenous peoples’ policy, had written the delegation to FSB13 that RAIPON is an extremist organization and works against Russia inside the country and in the international arena. Since 2009, several state services including FSB, Police, Tax service, and the Ministry of Justice had started a massive examination of RAIPON’s work from different aspects with the aim to find some illegal content in RAIPON’s activity. There pressure on Indigenous leaders in regions and on office staff was also organized to force them to testify against the leadership of RAIPON. This process was continued for several years, and in 2011 the Ministry of Justice had found some very formal mistakes in RAIPON status14. In September 2012, Travnikov changed his position and became the Deputy Minister of Justice. After assuming the position, in October 2012 he immediately initiated the official procedures to close RAIPON as an NGO15.

During the long years of international work, RAIPON became a rather well known and recognized Indigenous organization, so it managed to organize an international information campaign to put pressure on the Russian government. The work was organized throw the UN and Arctic Council. Hundreds of organizations and individuals around the world wrote letters of support and proclamations to president Putin and the Head of the Federal Government Medvedev with a request to not close RAIPON.  And finally, the Ministry of Justice withdrew its request to close RAIPON as an NGO in March 2013, just before the VII RAIPON Congress in Salekhard16.

At the same time, authorities organized a political campaign inside the Indigenous movement in regions to change the leadership of RAIPON to a more loyal person, which would not criticize the federal government for Indigenous policy. That person became the new Deputy of State Duma Grigory Ledkov. This person was elected to the Russian Parliament from the biggest Russian political pro-Putin’s party “United Russia” in December 2011 and before that time he was totally unknown inside the Indigenous movement of Russia.

The authorities threatened and pressured Indigenous leaders in regions in order to force them to vote for the “proper” candidate in RAIPON’s Congress that was organized in April 2013 under the unprecedented control of the Presidential Administration and the Federal Security Service (FSB). The candidate from the old RAIPON team, ex first vice-president Pavel Sulyandziga, won two closed ballots but after that, under pressure from FCB officers, who participated in the Congress, withdrew their own candidate, so Ledkov won the third non-competitive “show of hands” ballot and became the new RAIPON president.

My personal case is also incorporated into the general RAIPON history of the last years. In 2010, the FSB suggested to me to be their recruit (agent) inside the RAIPON office. They made this suggestion through my ex-classmate with whom I studied in University. He is now an FSB officer also. They also suggested that I sign a statement against the first Vice President of RAIPON, Pavel Sulyandziga, who is one of the most prominent Indigenous leaders in Russia. This statement included false evidence that Pavel works against Russian interests and it accused him of extremism.

I refused this suggestion and then received several undisguised threats from the FSB that I will be in big trouble if I do not cooperate with them. I discussed the situation with my colleagues and we agreed that it would be crucial for me to spend some time outside of Russia. In May 2011, I escaped from Russia and within several months evacuated my family as well.

After that, the FSB initiated a criminal case making the claim that I stole several million rubles from the Russian budget. The case was not moving until the fall of 2012 when the Ministry of Justice had initiated the procedures to close RAIPON and we started the massive information campaign around the world. I continued to be vice-president of RAIPON at that time and participated actively in this campaign from abroad. I suppose that was rather valuable input in the whole campaign because I have the ability to speak openly outside of Russia without any censorship.

In the end of 2012, the Russian authorities sent a request to Norway to extradite me to Russia. I was arrested in Norway just after returning from the Alta conference in Norway in June 201317 and spent two days in jail in Tromsø.  The Norwegian court made the decision to free me and in August 2013, I asked for political asylum in Norway.

Russian political context

Since the first steps of Vladimir Putin as a “new old” Russian President in the spring of 2012, he has suggested a new model of Russian internal policy. He felt a threat to his regime from street opposition activists that organized the biggest protest rallies in the history of modern Russia after the decision of Putin to return to the Kremlin. Thinking that scenarios of Arab Spring could be possible in Russia, he undertook unprecedented measures to strengthen control on society, mass media, non-governmental sector etc. Since the first days of his presidency, the police initiated hundreds of criminal cases against oppositionists, political activists and representatives of public society.

Dozens of new laws were adopted to toughen Putin’s regime and strengthen the possible punishment for opponents of the authorities. I cannot go into details, but can remind you of only several legal innovations that give the impression of the political developments in current Russia.

In June 2012, the Russian Parliament adopted amendments to the Administrative Code that strengthen the liability for participation in protest rallies. This innovation, better known as the “Law about political meetings,” was adopted just after the significant protest organized by the opposition during Putin’s inauguration as president of the Russian Federation.

  • In July 2012, the State Duma adopted amendments to the federal law on non-governmental organizations that is widely known as the “Law about foreign agents.” The law implemented the definition of “foreign agents,” that are supposed to be non-governmental organizations which receive foreign support, like grants, and have influence on the political agenda in Russia. But the practice of realization of this law showed that it mainly addresses opposition and independent civil organizations.
  • In July 2012, there was an amendment to the law on children’s protection from negative information known as the “Law about the black lists on the internet.” This law allows the closure of any web page if it is believed to contain harmful information to children without a court decision immediately after the request from authorities.
  • In October 2012, it was adopted into federal law a significant expansion in the concepts of “high treason,” “divulgence of State secrets,” and “espionage.” According to the new regulations any transmission of information by a Russian citizen to a foreign state or international organization, which is considered to be hostile to Russian interests, could be considered a crime even if that information does not include any state secrets.
  • July 2013 – the amendments to federal law “On violations of the rights to freedom of conscience and religion” which strengthened the liability for insulting the beliefs of the faithful and became the reaction of the authorities on the Pussy Riot’s action.

These are only several laws, but they show very clearly the whole picture with regard to human rights and the political trends in Russia. Many other restrictive laws were adopted in Russia during the last couple of years, for example, the rather famous “Law about homosexual propaganda” which was designed to protect children from homosexual propaganda, but in reality it became a weapon against people from a minority sexual orientation. The other “Law of Dima Yakovlev” was designed to protect Russian orphans from violence in foster homes in the US, but in reality it became the answer of Russia to the US “List of Sergey Magnitsky”18 and in fact, it destroyed the adoption system in Russia. Today this machine continues to work. The common feature of this legislative process became the speed at which the adoption of the new prohibitive laws came into effect. In previous years the State Duma spent months or years to adopt the laws, and now it could take several weeks or even days.

During the last two years, Russian authorities opened several criminal cases against prominent Russian oppositionists or civil activists that became widely known inside Russia and on the international level.

  • The case of the Pussy Riot band, which organized a protest action in central Moscow Orthodox Temple of Christ of Saviour. The members of the band sustained a conviction of two years in jail.
  • The case of Alexey Navalny, the current leader of the political opposition in Russia who was convicted for economical crimes and cheating. He received five years of a suspended sentence. Immediately after the end of the trial, authorities opened a new economical case against him and his brother.
  • The Greenpeace case was opened when the Russian Border Guard captured the “Arctic Sunrise” in the Barents Sea during a protest against oil extraction in the Arctic.
  • The case against opposition activists Udaltcov, Lebedev and Razvozhaev who were convicted in “attempt to overthrow Putin’s regime using money from Georgian president Mikheil Saakashvili.”
  • The Bolotnaya case within which 12 civil society activists were jailed for a demonstration against Putin’s presidential inauguration in May 2012.

These are only the most famous cases among hundreds of others when innocent people were convicted or put in jail for critical or independent points of view on the political agenda in Russia. If we address the topic of Indigenous people, besides the RAIPON case, we can also remember the case of Ivan Moseev, the leader of Pomor People in Arkhangelsk Oblast and director of the “Pomor Institute of the Indigenous and Small Numbered Peoples of the North” who was convicted for inciting of interethnic hatred.

All these changes accompanied ideological work organized by the Kremlin among the population in Russia. Controlling all TV and almost all other media outlets in the country, the presidential administration organized massive propaganda among a significant loyal population with the aim to identify the external and internal enemies of the State, which are “responsible” for the troubles in the country. Putin proficiently used the image of the USA in internal propaganda as a “world’s empire” that works against Russian interests. He also implemented into the public consciousness the idea that Russia is the last outpost of morality and traditional valuables in the world. Homosexuals, “foreign agents” and “liberals”19 began to be considered as internal enemies who work against the State inside the country.

Besides the aim of suppressing the opposition and criticism within the country, this ideological technique gives the authorities the opportunity to redirect people’s discontent from the real political and economic problems onto imaginary enemies. This policy has led to actual separation of different segments of the Russian population as either “good,” or from the loyal part of the population, or as “bad” or public enemies. In Russian political rhetoric, such terms appeared as “constructive opposition,” “Bolotnaya opposition,”20 “grantoed”21 etc. In varying degrees, it has affected all significant civil society sectors, including human rights’ defenders, ecologists, journalists and others.

The other distinctive feature of the ideological work of the Kremlin is the creation of “proper” organizations or movements inside civil society, which support state policy. Government also significantly increased funding for loyal parts of the population, like the army, police, secret services, high-level bureaucrats, deputies of State Duma, pro-governmental youth organizations etc.

Russian Indigenous movement within the political context

All tendencies of Russian internal politics reflect clearly on the Indigenous movement. The Kremlin was not able to create the alternative organization of Indigenous peoples of the North to change RAIPON into a main opponent on Indigenous issues, neither internally nor, and especially, on in the international arena. So in tight cooperation with FSB, the Presidential Administration organized a campaign against RAIPON on different levels, which finally allowed the Kremlin’s creatures to seize the reins of the governance in the organization. The Ministry of Regional Development long before the current shift in Russian internal policy initiated that campaign, but the political trend of the last years allows us to follow this work to its logical conclusion.

The fist steps of Ledkov showed that it is becoming more and more a “governmental NGO” (GONGO), which supports all the activity of the federal authorities. After his election, Grigory Ledkov totally changed the rhetoric of the organization. His first action as the RAIPON president was the dismissal of all the staff of the Moscow office and changed the information policy of RAIPON’s web page and e-mail list, including censorship of negative comments on Governmental policy.

The new RAIPON’s president publically supported the arrest of Greenpeace vessel in the Barents Sea, which would have been inconceivable for the previous RAIPON team. After the Alta conference he wrote the appeal to FSB with the request to check the activity of the Russian delegation during the Conference and especially the points of the Alta Declaration about self-determination of Indigenous peoples, which could be considered public incitement to extremism,22 and secession of territories from Russia. After that, FSB has opened the case against several Indigenous leaders and accusing them of extremism, which became a rather serious crime according to the newest Russian laws. RAIPON started to support, or at least not protests against Governmental legal initiatives in resource legislation, which potentially reduces the scope of Indigenous peoples’ rights to lands and resources.

That is also a reflection on the Indigenous movement in general. The segregation on loyal and disloyal Indigenous leaders has started in the regions. The Indigenous organizations, which received grants from foreign donors, are being publically attacked by pro-governmental mass media. Prosecutors’ offices recognized several Indigenous organizations as “foreign agents.”

Conclusions

The biggest challenge for Indigenous people in Russia still remains the lack of implementation of the active federal laws, which guarantee the rights of Indigenous peoples. The authorities implement these legal provisions in a very selective way, especially with respect to the topic of natural resources and lands. It is rather similar with situation in Latin America, but Russian courts, in contrast to Latin America’s courts, have totally lost their independence from Government and in fact Indigenous peoples in Russia have no effective possibilities to appeal for judicial justice in the most sensitive questions regarding land and natural resources.

Unlike the situation in Latin America, Russian Indigenous peoples today have no real opportunities to influence internal policy through international institutions like the UN. Concentrated on internal policy and work with their own population, Russian authorities stopped paying considerable attention to negative international effects from human rights violations in Russia. They openly disregard international law and decisions of international bodies like the European Court of Human Rights23 or International Tribunal for the Law of the Sea24; the Kremlin demonstrates the priority of internal policy of retaining the power to the detriment of their own international reputation24.

The modern Russian political regime is transforming from a soft authoritarian model of the early Putin era to a totalitarian model and demonstrates all the classical symptoms of that transformation: the appointment of the enemy who is responsible for the challenges, repression against political opponents and independent points of view, raise wages for law enforcements and the army, control over the media and the massive propaganda among the population etc.

Indigenous peoples are an integral part of civil society and experience the same tendencies of state policy as other parts of the population. In the case of Indigenous peoples, the negative effects from the political shift are also enhanced because they claim significant economic resources, like lands and natural resources. As shown, the general Russian experience of the decline in human rights inevitably leads to a reduction of the scope of Indigenous peoples’ rights.

From the researchers’ point of view, the current Russia represents a unique global phenomenon, which demonstrates the regression of Indigenous peoples rights in contrast with most other countries where Indigenous peoples’ rights generally develop according to the international law. At the same time, after two decades of freedom and hopes, this current political development of Putin’s regime returns Russian Indigenous peoples to the tragedy of the loss of self-identification that Indigenous peoples experienced during the Soviet Union times.

Endnotes

  1. Further – Indigenous peoples of the Russian North
  2. There are other seven peoples in Russia that have status of small numbered Indigenous peoples but not belong to the small numbered Indigenous peoples of the North, Siberia and the Far East.
  3. For example “Reindeer kholhozes” (collective farms) or other state ruled entities.
  4. The income from hunting, fishing and reindeer herding in Taimyr region in 2010 was approximately 4,100 rubles per month while the minimum subsistence for this region was 11,313 rubles and the regional average salary was approximately 30,000 rubles (IWGIA, Briefing note, “Indigenous peoples in the Russian North,” March 2012).
  5. Matveev A.S. “From the paradigm of conquering the Arctic to the paradigm of its habitation.” The publication of the Council of Federation “The current status and the development of small numbered Indigenous peoples of the North, Siberia and the Far East of the Russian Federation,” October 2012.
  6. For example, according to the formal Russian law, the provisions of the UN Declaration on the Rights of Indigenous Peoples are the integral part of the Russian legislation system.
  7. The term “Obshina” is translated into English as “Community” but in general understanding in Russia this means basically the small-scale family enterprise.
  8. One people that is the member of RAIPON was not included officially into the “United list of the small numbered Indigenous peoples of the Russian Federation.” This is Komy-Ishma people that live in Komy Republic. But this people was included into the RAIPON in 2005 as the people which preserves the traditional Northern reindeer herding.
  9. There are forty-seven peoples who are totally in the “United list of the small numbered Indigenous peoples of the Russian Federation.” Seven from them do not belong to small numbered Indigenous peoples of the North, Siberia and the Far East and live mostly in the South regions of Russia. The Dagestan Republic has its own regional list of Indigenous peoples, which include fourteen peoples and this list is an integral part of the Federal list.
  10. Sergey Kharuchi had been being the president of RAIPON during the 4 terms until April 2013.
  11. Some RAIPON experts called this process as “commercialisation of the legislation” in Russia.
  12. Subjects of Federation according the Russian law.
  13. Modern analog of the Soviet KGB.
  14. http://www.iwgia.org/news/search-news?news_id=710
  15. The Ministry of Justice controls the sphere and legal activity of NGOs in Russia.
  16. The capital of the Yamal-Nenets autonomous Okrug.
  17. That was the preparatory meeting for the World Conference on Indigenous Peoples in 2014 in New York.
  18. This is the US governmental black list of persons who are guilty in human rights violations and other crimes in Russia, Persons from this list has no right to enter to US.
  19. The terms “liberal” and “democrat” which were so popular in Russia during 1990’s have now become abusive terminology in the slang of Russian officials and bureaucrats.
  20. Bolotnaya Square located near the Kremlin and it was the venue of massive protest rallies during 2012.
  21. That term means a person or organization, which receives (eats) the foreign grants with a negative subtext.
  22. The motivation of the case is that self-determination of Indigenous peoples, which was included into the Alta Declaration, could damage Russian national security.
  23. Despite the decision of European Court of Human Rights, Russia refused to review the case of Alexey Pichugin who was colleague of Michail Khodorkovsky in the oil company UKOS and received a life sentence in jail.
  24. Russia refused to participate in hearings of International Tribunal for the Law of the Sea on the issue of detention of the Greenpeace vessel in Barents Sea.
  25. That is interesting to note that Russia actively continues to appeal to international law and agreements when it corresponds to the Russian political interests like in cases with Syria or detention of Russian fishery vessel “Naydenov” in Senegal.

FDCIP 2013 The Maasai of Tanzania

The Maasai of Tanzania as Worst Practice

Kelly Askew (Univeristy of Michigan) with Adam ole Msarabu (PAICODEO)
and Navaya ole Ndaskoi (PINGOs Forum)

The following is a list of pastoralist evictions in Tanzania between 2006-2013)

  • Usangu Valley in Mbarali District in 2006-7
  • Kilombero, Ulanga and Kilosa Districts in 2009
  • Loliondo in Ngorongoro District in 2009
  • Makao WMA in Meatu District in 2011
  • Rufiji and Kisarawe (brutal clashes) in 2011-2
  • Alienation of 1,500km2,  Loliondo in 2012
  • Morogoro Region (Kilombero and Ulanga) 2012

There were cases brought against pastoralists in 2005 and the pastoralists were evicted. The official justifications were that were too many conflicts between pastoralists and farmers, and that in the name of peace, the pastoralists had to be moved. There was also an expansion of the National Park in this case as well. They are not required to follow the same rules and restrictions as with other National Parks, so they can make money on this by allowing foreign hunters the right to hunt in these territories.

The following is a list

A newspaper heading states “they [the pastoralists] have been reliably informed that the disputed land would be leased to private investors.” Some of the justifications previously were for the environment, to reduce conflicts between pastoralists and cultivators, and for the expansion of national parks— which would all seem to be somewhat internal to Tanzania— but now you see that the arm of foreign investment is becoming increasingly the main justification for pastoralist evictions.

The biggest version of foreign investment and looming investment going on right now and about to launch in Tanzania is called SAGCOT (Southern Agricultural Growth Corridor of Tanzania.) This is President Jakaya Kikwete at the World Economic Forum in Davos, Switzerland in 2011 where this was publicly and internationally announced. This is a plan to allocate large tracts of land to major investors and agri-business corporations, who would set up contract farming with local producers in return for some of the inputs necessary: the seeds, the fertilizer, and credit and investment in infrastructure, such as roads and storehouses.

Slide 15
The whole southern third of Tanzania, with the area darkened showing SAGCOT (Slide 15)

SAGCOT is co-chaired by the ministry of agriculture and it has the support of the G8 and other major partners, including the very infamous Monsanto Corp., Syngenta, DuPont, and General Mills. The idea is to leverage 1.3 billion dollars in public and donor money in order to raise an additional 2.1 billion from the private sector over a twenty-year period.

The aim is to:

  • incorporate an initial 350,000 ha into “profitable” agriculture through a mix of commercial farming and small producers via contract farming;
  • seems small but amounts to roughly 21% of all land under cultivation in the corridor;
  • one goal is to increase land for investment in the General Land category by shifting large parcels out of currently designated Village Land into Tanzania Investment Corporation (= central govt.)
  • SAGCOT

Here is a statement from a USAID land specialist, from 2012, which sums up clearly what we are dealing with here:

“It may be factually accurate that land is widely available for investment, but the claim begs a crucial question:  from whom will these hectares come? To state it bluntly, most of the lands that the government of Tanzania wishes to see developed in SAGCOT will need to be taken from villagers by government and leased to investors.
— USAID land specialist, 2012

Slide 19
Kilombero Valley and the Kilombero river basin, one of the major resources in Tanzania. In this area is where many of the pastoralist evictions are happening right now. (Slide 19)

Kilombero Valley and the Kilombero river basin, one of the major resources in Tanzania. In this area is where many of the pastoralist evictions are happening right now. (Slide 19).

In 2006, Government Proclamations re: Kilombero

“People who settled in Usangu and Kilombero valleys should leave immediately. This directive also applies to livestock keepers and farmers who feed their animals and cultivate land in national parks and in Ihefu and Kilombero wetlands protected under the UN Ramsar Convention.”
— Vice-President Shein, 2006

Also, here are some newspaper headings from the time:

“Government orders all pastoralists off Kilombero.”
The Citizen, 25 August, 2011

“Kilombero to expel pastoralists, fishermen.”
Daily News, 3 Sept. 2012

A government official states that it needs to be implemented and now the rhetoric has shifted and instead of calling people “Wafugaji” which means pastoralists, she now uses the term invaders. So this is a shift in the discourse by calling pastoralists “invaders,” and denying them their citizen rights and calling them foreigners and aliens. There were teams brought in to evict the pastoralists; they were well equipped and highly funded with helicopters and all the latest in technology. What was particularly upsetting was that 100 million shillings were set aside for the evictions in Kilombero. The first sentence here states that the government will spend 100 million for evicting pastoralists and their livestock from the Kilombero River Valley, the amount will be spend paying allowances to police and other government officials who will be involved in the evictions.

Kilombero Eviction Rhetoric:

  • Environmental degradation from livestock
  • Kilombero Game Controlled Area
  • The United Nations Ramsar Convention, which is to protect wetlands, this is being employed as part of the rhetoric for evictions
  • Eastern Arc Mountains & associated forests
  • Migratory corridors (Selous, Mikumi & Udzu)
  • Pastoralists decried as ‘aliens’ or immigrants
  • Hydroelectric dams like Stiegler’s Gorge, etc. require the water and therefore the water and therefore the water cannot be used for supporting cattle
  • Endangered species: Kihansi Spray Toad, buffalo
  • National grain reserve through SAGCOT  (protecting the land and water for the SAGCOT initiative)

The Morogoro press was particularly aggressive in the rhetoric. The Morogoro Regional Commissioner (RC) Joel Bendera is behind many of these very violent evictions where peoples’ houses are being burned down, women are being raped, children and livestock injured. Even though a High Court injunction was launched by some of the pastoralists. It was issued that nothing would happen until it had reached its decision. The Regional Commissioner completely and flagrantly violated that injunction and continued with the eviction proceedings, these articles are from September and October of this year.

To sum up the Ulanga and Kilombero District evictions

  1. 5,000 pastoralists evicted.
  2. 486,736 livestock confiscated by government officials.
  3. Billions of Tanzanian shillings collected through fines during the operation.
  4. Pastoralists left in abject poverty.
  5. No compensation made.
  6. No alternative land allocated.

Some voices in the government are starting to speak out against this. There are ongoing evictions that have not gotten as much attention and one group has been somewhat successful in resisting. They were issued a communal title deed, but it is already being reviewed because, unlike the Enderoi case, they did not constitute a people in the constitution before they were given communal title. They were able to protect their land against a foreign tour operator who was seeking it, but it still remains to be seen.

I will now turn out attention to the Emborley-Murtangos case, which involves the Kiteto district (see: http://www.der.org/films/chairman-and-the-lions.html) in the Manyara region. This is the former Maasai district; it is still the Maasai step. This is a case that, like the Enderoi case but in the context of Tanzania, went up to the court of appeal. It was judged at the High Court level and the case was launched at the High Court level, but the nine Maasai villages that were trying to protect their land against farming invaders did not launch it. The case involves 200,000 ha of land in the middle of which is a major salt lake that the pastoralists depend on for their cattle and that the migratory wildlife also depend on as they move from the Serengeti down to the Urawa. This salt lake is a well-known natural resource that, even under colonial times, was protected. Even under colonial times it was zoned for hunting and wildlife management only. In 2007, some of the villages decided to pool their village land in order to legally cordon it off to prevent residence by outsiders there so that this land would only be used for cattle pasture and access to the salt lake and wildlife. They pooled their resources, each of the nine villages contributing some part of the village land to the creation of a wildlife management area. In violation of that process, major political elite recruited poor laborers from their home districts and sent them into the area to start farming and clearing bush and cultivating illegally. So, by 2007, there were 17,000 farmers that had entered this area and were farming illegally on land that had been designated for wildlife management and for pasture.

As is the case in several cases I have noted in Tanzania, it was not the pastoralist villages that launched the lawsuit against those who were encroaching on their land, in fact, it was the reverse; it was the invaders who filed the lawsuit. Fifty named respondents sued the District Council on behalf of all 17,000 of them, claiming they were being subject to constant harassment and eviction-proceedings when they were entitled to be there. They used the exact same rhetoric that you heard the farmer in the film use, which is that they had been there since the 1980s. The reason this is important is because the law in Tanzania states that if you have lived on land for 12 uninterrupted years, peacefully, then the land is yours. So, by trying to claim that they had been there since the 1980s, they were making a claim under that mechanism of the law that this was customary ownership. But interestingly, in their own affidavits and testimonies in the case, they talked instead about how they have been subjected to constant persecution—being moved from here to there and getting kicked out of one area and sent to another. They told long stories about harassment, which then undermined their claim that they had lived there peacefully and uninterruptedly since the 1980s.

Nevertheless, despite this discrepancy in the evidence, the High Court judge who is rumored herself to be one of the land-grabbers in this region and therefore biased, ruled in favor of the cultivators and assessed a fine of 1 million shillings against the District Council. The District Council then launched its appeal to the High Court of Appeal and it argued on a number of grounds. One of the grounds was that it was unfairly fined and it was the wrong person or institution to be sued because the District Council did not claim ownership of the land. It was argued that if the farmers were suing for ownership, they should be suing those who did claim ownership, which were the villages, which as I said, the village land was under village authority not under the central government. The district protected itself by saying that they were the wrong entity to be sued, claiming that they were simply the enforcing authority for the decision made by the villages, who have been trying for years to evict these people off the land that they had set aside for wildlife management purposes. There were a number of other rationales used. But in the end, fortunately, the case was won in November of 2011. The Court of Appeals ruled in favor of the district. But interestingly, whereas the High Court had issued a fine against the district of I billion shillings, and outright ownership of all the land to all the cultivators, the Court of Appeal did not make any redress. It simply said that the land remains under the authority of the villages, end of story and no compensation. Not even lawyers fees would be fined against the plaintiff.

The case is now that these villages have been granted their ownership rights by legal writ through this judgment, but the invaders are still there and they are not being evicted because the District Council says it has no money to evict them. Note that in one of the media pieces from earlier, 100 million shillings was set aside by the government to evict pastoralists from the Kilombero Valley, so the government has resources to evict pastoralists over and over again, but when it comes time to evicting farmers from pastoralist lands, they say they have no money.

One month after the final court judgment was issued in November of 2011, the very next month, all of the villages, not just the nine who were named in the suit, but all the neighboring villages known to have Maasai majorities in this region were all given letters by the District Councils. The letters said that each village had to pay the District Council money for paying the district back for legal fees and all the trouble we went through to protect your land for you and each village was assessed a rate depending on the distance from the site. Lesoit, the village we saw in the film—even though they are at the far reaches of the district—they were still assessed a 3 million shilling fine by the district that they had one month within which to raise. The district very clearly laid out in its letter that wealthy pastoralists had to pay 400,000 shillings, middle tier pastoralists had to pay 100,000 shillings, and the poorest pastoralists had to each come up with 50,000.

Now it has been two years since the judgment. The farmers are all still there and we also have a situation of lack of enforcement and implementation of the decision, but the villages are being taxed yet again. This time of the year is the hardest for pastoralists because this is between the end periods of the longest dry season. The rains hopefully will come in November or December, but until then there has been no rain since May, so the cows are scrawny and there is not much food anymore and people are suffering. This is the single worst time of the year, and yet just two weeks ago they were all summoned to the district office and told that every village had to pay 20 million shillings, which is roughly 13,000 to 14,000 USD, and again it was very carefully laid out. Wealthy pastoralists would pay a certain amount. Farmers, curiously, irrespective of the size of their holding, were given a flat rate for what they had to pay as well. So the villages now are trying to seek what legal options they have to avoid this tax. In every case, whether you are the one being evicted or whether you are the one whose land is being protected, it seems that the pastoralists are always made to pay.

Loliondo is a famous case that I won’t spend too much time on because there is a lot there. But what is interesting is that they have received international attention. They were able to access the international networks in a way that the Enderoi case also exemplified. They have gotten attention through a website AVAAZ.org, which as of yesterday had 1.7 million signatories to it which is forcing some recognition. Tanzania was put on the defensive. The British press and the international press were all saying that the government of Tanzania is trying to evict Maasai in order to grant the land to a private hunting concession to the Arab royal family of the Emirates. This, of course, is unconscionable, but as of September 26 (2013) it is rumored in the press—but it is yet to be confirmed—that the prime minister met with the Maasai and said: “Fine, fine, I give up, the land is yours to keep.” How true this statement is remains to be seen.

In conclusion, anti-pastoralists legislation is also the legal foundations on which the state in Tanzania is able to engage in some of these violent abuses against pastoralist communities. Here is a list of recent anti-pastoralist legislation:

  • Animal Diseases Act, 2003
  • Grazing Land and Animal Feed Resources Act, 2010
  • Livestock Identification, Registration and Traceability Act, 2010 (Shs 3,000 fee per animal)
  • (new) Wildlife Conservation Act, 2009/11

One of the impacts of this legislation is that pastoralists cannot move with their livestock, which is essential to their livelihood. The Livestock Identification, Registration and Traceability Act, 2010 requires that every single cow must have a government issued identification. The state has not managed to do this for people yet, but it is insistent that it must do it for cows, and again, the Maasai and all pastoralists have to pay the fee for the tag. The Wildlife Conservation Act, 2009/11 removes the ability of communities to enable grazing in wildlife management areas. The wildlife management act of 1974 said they could not take up residence, but they could use it for grazing and other purposes, like bee-keeping, and other productive purposes. Now this new version, issued in 2009 and implemented in 2011, said no productive activities in the forest at all. There is also the continued refusal by the government of Tanzania to recognize the existence of Indigenous peoples, although it has signed the UNDRIP, unlike in Kenya where ratification of International treaty converts automatically into local enforcement, in Tanzania if the government signs an international treaty, it is still not recognized as enforceable until the Tanzanian government issues its own law domesticating that treaty into the state of Tanzania. Tanzania is undergoing a constitutional review right now; it remains to be seen whether some of the protective measures found in the Kenyan constitution will also be replicated here. People are very worried and the pastoralists are exceptionally concerned that the new constitution will just be further legal grounds upon which the persecution of their way of life can continue.

And I leave with this unusual piece of media from earlier this year where the president challenges the pastoralists to acquire land for grazing, he is encouraging pastoralists to buy land and get title deed to it. So after having removed them from the lands that they originally had and fine them for that exercise, now he is saying, use more money and buy back other land. So you can see the case in Tanzania, indeed, as being a case of worst practice.

Slide 37
Slide 37

Thank you very much.

FDCIP 2013 Enderoi Case

The Enderoi Case as a Best Practice

Korir Sing’Oei
International human rights law expert and advocate and Member of Parliament, Kenya

I am delighted to be here today. It is a profound honor to meet all of you today.

I want to thank the conference chair for inviting me here to speak to you about the Enderoi case in Kenya.  Listening to the chair of my session, my friend Professor Dahl, he has really laid a firm foundation for how my presentation would be made. I am also really indebted to my friends at IWGIA, an organization without which a lot of work that we have done would not have succeeded.

The Endroi’s case as a best practice
What is it that makes a case a best practice? At what point do you decide that it is a best practice and who does it? Is it a factor of the ubiquity of citations of that case in popular and academic literature? What is it really a function of?

In seeking answers to this question, an interesting analysis that I found was from a Norwegian political scientist actually, Siri Gloppen, in her book Courts and Marginalized Comparative Perspectives, she writes:

The value of litigation should not only be judged in terms of how a case fares in court or whether the terms of the judgment are complied with, it is as important to look at the systemic impact, the broader impact of the litigation process on social policy directly and through influencing public discourses on social rights and the development of jurisprudence nationally and internationally.1

So based on what Dr. Gloppen says, my analysis of the Enderoi
Case would not just look at the immediate impact of the case in terms of how the case fared in court, but it would also look broadly at whether this case and the decision thereof has had more systemic implications for similar cases within the continent of Africa and elsewhere on the globe. But perhaps to start with it is important to ask ourselves: what is the Enderoi community?

The Enderoi community is a small community compared to others in Kenya. Sixty thousand is their estimated population out of a country of 40 million people. Even this population figure is an estimate, because in the desegregation of the population data in Kenya the Enderoi never reach anywhere. Because it is only the dominant communities whose figures are released and most other communities that fall fewer than 100,000 people are usually classified under a broader rubric called “others.” So, the othering that professor Dahl was talking about is very realistic even in times of statistical desegregation of a community such as the Enderoi.

The Enderoi practice a pastoralist livelihood. They have an economy that is highly dependent on livestock and the capacity of this livestock to be moved from one place to another according to the weather conditions. The Enderoi are organized at the clan level. But they have all come together under and an institution called the Enderoi Welfare Council, which is a fairly representative institution. In 1973, the government of Kenya reserved the bulk of Enderoi land within Lake Bogoria in Kenya’s Rift Valley and transformed that land into a game reserve, to be managed by two local authorities from Bogoria and Koibatek. In establishing this conservation area, the Kenyan government forcefully evicted over 400 Enderoi families without any consultation and no compensation. As a consequence of that eviction the Enderoi pastoralist enterprise was negatively impacted to the extent that they lost more than three quarters of their livestock and became destitute from that moment on.

Between the time of the eviction in 1973 and the early 1990s the Enderoi pursued, what one would call, a political petitioning strategy. Essentially what these involved was writing letters to the local authorities and seeking meetings with political leadership, including with the president of the Republic of Kenya at the time Daniel Arap Moi, who happened to be the member of parliament for that larger area called Baringo where lake Bogoria is situated. This strategy was less than successful.

In 1997, the Enderoi community made a decision that they needed to pursue a different strategy. They filed a case at the High Court of Kenya where they were seeking remedies under the law of trusts. Essentially, the government took over what was initially Enderoi trust land and then granted it to these two local authorities. Under trust law, the cardinal principle is that there is a trustee and a beneficiary relationship. And one of the obligations of a trustee is to render accounts to the beneficiary in terms of the manner in which the trust is being used, and secondly, to share the benefits arising from that trust. The Enderoi community went before the High Court of Kenya and essentially argued that this trust relationship had failed because the two local authorities had neither presented them with accounts in terms of how they were managing the resource, nor had it presented it with information as to how it would be using revenues accruing from the exploitation of that natural resource. They were unsuccessful.

The courts essentially reasoned as follows: first, the court questioned the standing of the community before the court because at that point in time, Kenyan law only recognized individuals. It only granted standing for the courts to individuals, and not to communities. And so the courts said: “Who are you again? You are just a bunch of individuals; we don’t know anything about people called the Enderoi.” Secondly, the court observed that the mere fact that the Enderoi lived contiguous to these natural resources that had been nationalized did not give them rights over and above the greater population of the country and that the only expectation that the Enderoi would have would be development arising from government programs based on taxation of that resource. Essentially, the court dismissed the entire claim. The court basically said it was not its responsibility to review whether or not the state was meeting its fiduciary or rights trust duty towards the Enderoi community.

Having lost this case, the Enderoi did not give up. Instead, it sought further legal advice and legal assistance. Of course, even before seeking further legal advice, the Enderoi sought to appeal the decision at the Court of Appeals. But between 1997, when this case was filed, and 2002 when this case was brought to our attention, the Enderoi appeal had never been heard by the Court of Appeals: one because of inefficiency of the court, two because of corruption, and three because of political interference. So by 2002, five years after filing an appeal, the Enderoi appeal had not been heard or determined by the Kenyan courts.

In 2002, the Enderoi community approached my organization at that time, the Center for Minority Rights and Development, which then was a young organization that had been established just that a year prior with the intention of championing the rights of minority communities in Kenya. The Center for Minority Rights Development had at that point in time just come into a relationship with another organization, based in the UK, Minority Rights Group International (MRGI). That was in the process of establishing a program of using law to advance the rights of minorities and Indigenous communities. And so when we were seized with this request one of the things we did in early 2003 was to have a discussion with MRGI on whether we could initiate a complaint on behalf of the Enderoi at the African Commission on Human and Peoples Rights (ACHPR).

As you know, the ACHPR is a creation, a board, it is a treaty body established by the African Charter of Human and Peoples’ Rights, and the charter is the most important human rights instrument on the continent. It is an instrument that enjoys universal ratification by most African countries, and the African Commission is the quasi-adjudicative body that the treaty established. It is a body that has both a promotional mandate but also a protection mandate. In its promotional mandate, like any other treaty body, it carries out research, etc. In its protective mandate, it invites and hears cases and makes determinations, so in 2003, Minority Rights Groups International and ourselves on behalf of the Enderoi and on their instructions, we filed a petition for the African Commission on Human and Peoples Rights. The Enderoi, were not only seeking benefits accruing from Lake Bogoria, in fact, they were seeking much more radical remedies: they were seeking restitution of their ancestral land. They were seeking compensation for all the material and spiritual losses. And most of all, they were seeking recognition, including registration of their organizing institution The Enderoi Welfare Council.
The case then went on for the next seven years. Not only had the Enderoi been in Kenyan courts for probably more than seven years, but also they even went before the African Commission, they were there for at least seven years. But in February of 2010, the African commission finally made a determination on the complaint and it determined that Kenya was in violation of various provisions of the African Charter, and granted the remedies that Enderoi sought!

What are the key aspects of the decision of the African Commission?
Probably the most fundamental aspect of this decision related to the recognition of the Enderoi as an indigenous community within the context of the African charter. Now the relevance of this recognition is because the African Charter recognizes not only individual rights, but between article 19 and article 24 of the African Charter there are several provisions that talk about peoples’ rights, and the Enderoi, therefore, were trying to locate themselves within the rubric of a people so that they could be a beneficiary to the protections accorded to a people. Previously the African Commission had ruled that peoples related to the entire population of a country. Its only in the case of a Nigerian community called the Agoni four years before the Enderoi decisions that the African commission had began to grapple with the possibility that a sub-national unit could actually be called a people that would be entitled to the protections of the African Charter. But the Enderoi case went farther than Agoni because they were a community that was not just saying that we are any grouping, they self-identified as an indigenous community. Thus, the commission was duty-bound to determine what the notion of an indigenous community in African meant.

In my view, what it determined is that the commission was basically saying that in Africa you do not look for aboriginality to determine indigeneity, what is important is what I would call constructive aboriginality. In other words, a community must demonstrate a dependence on a specific territory, it must demonstrate the experience of marginalization and discrimination, and then it must demonstrate the extent of the group’s non-accommodation by dominant development paradigms. When the commission subjected the Enderoi to the three objective standards that it had set out, it actually had determined that the Enderoi were an Indigenous community. The commission also struggled with an argument that the Kenyan government made before the commission that the community was no longer distinctive from the dominant communities that neighbored it to the extent that the community had “suddenly acquired sudden facets of modernity” and had therefore become integrated. And what the commission determined was that in determining and making this formulation they actually relied on a decision in the Inter-America court in a case called Saramaka in Suriname. The commission ruled that the Enderoi couldn’t be denied juridical personality just because there is a lack of individual identification within traditions and law of the Enderoi by some members of the community. The commission then recognized this dynamism in terms of indigenous identity in Africa.

In relation to the right of property, which was really the crux of the claim before the African commission, the committees determined that it was necessary to have a paper title to demonstrate ownership because the Kenyan government and many African governments and many governments in the West as well, obviously would link ownership with a clear paper demonstration. The Commission found that neither a paper title nor uninterrupted occupation were necessary indicators of ownership for an indigenous community. What do you look for then in determining ownership? The commission said you look for traditional occupation. And if traditional occupation is absent then you ask yourself the question of whether the traditional occupation has been lost through forced eviction. Ask yourself whether unlawful dispossession and transfer has favored third parties in relation to the indigenous community. Ultimately, the commission determined that the property rights of the Enderoi had been violated in line with article 14 of the African Charter.

The other right that was implicated by the Enderoi claim is the right to development in article 22 of the African Charter. Essentially, what the Enderoi were arguing was that this development is not “our development.” This is development that excluded us from our land; it’s a development that has been procured without our concern and consultation. It is a development that has diminished our capability and our dignity as a people. The commission agreed with the people. It determined that the right of development is both constitutive and instrumental. In other words, it is useful as both a means and an end. So, in order to determine whether the right to development has been complied with you cannot just look at the end product, you must pay attention to the process that generated that end. Second, the commission set down various indicators of development and it determined that the development must be equitable; it must be non-discriminatory, participatory, accountable and transparent. Again, setting a fairly high benchmark for the process of development. The community determined that the active free and meaningful participation in development would ideally lead to the empowerment of the Enderoi community. It cannot be development if it leads to the disempowerment of the alleged beneficiary community. That is the reasoning of the commission. And lastly the commission determined that if there were any agreements that were based on a meaning capacity between the state and community, those agreements could not constitute proper consultations and proper consent. So again, putting a responsibility to ensure that the negotiating capabilities of a community—in terms of what Professor Dahl was talking about—are enhanced so in the process of negotiation for development gains. There were other determinations in terms of the rights to religion and culture as well as the right to natural resources.

Ultimately, these are recognition measures given to the Enderoi, including the rights of the recognition of ownership of the Enderoi community and restitution of the ancestral land. It included the community being granted unrestricted access to Lake Bogoria and surrounding sites for religious and cultural purposes, as well as grazing of their livestock. It also included payment that was adequate compensation arising from the losses they had suffered as a community over the years. It included the payment of royalties to the Enderoi for existing economic activities as well as benefit sharing from employment possibilities from within the reserve.

Why did the Enderoi succeed? This is the big question? I think it must be said that the Enderoi benefitted from what I will call fortuitous circumstances in a way. One of the most important fortunate circumstances here was the establishment of the Working Group on the Rights of Indigenous Peoples in Africa. This working group, which as you know has been funded for years by IWGIA, from 2003, began a process of research, researching issues of indigenous people. Through this process, the mindset of the commission was gradually changed. When the process started in 2003, the commission was even resistant to the notion of indigenous people. But five years down the line, after the working group had reported on its findings and after several missions to various countries by the commission there was a dramatic mindset change.

The Enderoi also succeeded because of the existence of transnational networks. I mentioned early that on the road, Minority Rights Group International, the role that IWGIA played, the role that the UN Permanent Forum played, and the mechanisms therein and the UN mechanisms related to indigenous peoples. All of the mechanisms provided the push factors that were necessary to ensure the community moved forward. Obviously, the community would not succeed without effective representation. But most of all, and this is really the fundamental part, even with the three factors that I have highlighted. Without a resilient community, without a united community, without an organizing principle, an impulse at the local level, the achievements that we are talking about today, would not have been realized.

I’m sure you are all excited about the remedies the commission gave. And so the question is: has it made a difference to anyone on the ground? Has it really mattered? Well, I think the jury is still out there, it terms of whether it has mattered. I look at it in two ways. There is the implementation of a judicial decision as a top down process, a process lead by the states and its organs; and there is an implementation in the pursuit for enforcement, which is championed and led and sustained by the community itself. So, in looking at that implementation, I think it is important to pay attention to those two facets.

In terms of the top down implementation: at the time when the Enderoi decision was implemented in 2010, the Kenyan constitution was still very much individualist in orientation, there were no provisions in the Kenyan constitutions relating to ownership of land by a community. There were many constitutional limitations. But in August of 2010, Kenya adopted a new constitution. In the new constitution the entire notion of trust land has actually been abolished, instead a new land tenure arrangement has been established. And through the establishment of the community land tenure, lies the recognition and provides very clearly that ethnic, cultural, and other groupings can own community land. There are provisions in the same constitution relating to examination of historical land injustices and the establishment of a national institution known as the national land commission to investigate historical land questions. There is recognition by way of article 46 in the new constitution of the notion of marginalized communities and in article 260 of the new constitution there are pastoral communities and indigenous communities. So there are many provisions in Kenya’s new laws that provide the broad framework for the implementation of the constitution.

The other very important development in Kenya, normatively, has been the reforms going on within our judiciary and the establishment of a supreme court. This basically means that one can seek advisory opinions from the Supreme Court in relation to, for example, the import of the determination of the African Commission on Human and Peoples Rights in relation to Enderoi. Other important institutions that have been established also include a Gender and Equality Commission, as well as a commission on administrative justice. So all these normative arrangements now exist in Kenya, which places implementation, in my view, within a stronger footing.

There have been attempts by the Kenyan parliament since the decision was made to require accountability by the executive in terms of the steps it has taken. For example, in February 2011, the Kenyan Parliament debated the Enderoi decision.  Again, this was a milestone that has never been witnessed in Kenya’s history, where the plight of a marginalized minority or indigenous community is actually discussed by the highest legislative organ. This meeting or this session of parliament, the minister in charge of justice, essentially was required to provide the steps taken to implement the decision, but he was unable to do that, instead, he blamed it on the commission, indicating that the Kenyan government had not been formally served with a sealed copy of the ruling of the commission. So there have been a number of top-down implementation processes that have taken place. But none of this has yielded any result.

But the community has not stood still and held its hands and decided there was nothing it could do. Instead, and again with support of various institutions, the commission has pursued various measures. For example in 2011, under the leadership of Enderoi’s women, they appeared before the African Commission on Human and Peoples Rights adopted a resolution on the protection of indigenous people in the context of the wild heritage convention and the designation of Lake Bogoria as a world heritage site. Essentially, this resolution, urged the Kenyan government to ensure expeditious implementation of the Enderoi decision. The most important action by the community to date, involves the establishment of a management committee and a boundaries committee. The management committee has basically come up with a strategic plan, a comprehensive strategic plan that has been formulated with consultation of the community relating to how the community can manage Lake Bogoria Game Reserve if it is restituted back to them. The boundaries committee, on the other hand, established by the community, has done a lot of work in terms of determining the outer limits of Enderoi territory.

Lastly, in terms of systemic impacts, what impact has this decision had on other communities? I would say it has had huge impacts on how Indigenous people’s advocacy as conducted in the African context. For example, right now, another community filed a case before the African commission, similar to the Enderoi case, relating to the restitution of ancestral land. The commission is persuaded a by the strength of this case. Instead of hearing it itself, they based their finding on the challenges of non-implementation of the Enderoi case to date. The Commission itself referred this case to the African Court on Human and Peoples Rights. So that the other case is now sitting for hearing before the African Court on Human and Peoples Rights next April, making it again, one of the very first Indigenous rights cases to be heard by the African court. And that is largely because of the work, the groundbreaking work that was done in Enderoi. There have been numerous cases that are cited with approval the Enderoi case in various courts. Most importantly, the Enderoi case basically legitimized the application of the UN Declaration on the Rights of Indigenous People in the African continent. It made reference, in various chapters to the UNDRIP, which goes a long way to say that the resistance on the part of African states towards the notion of Indigenous people and towards the adoption of the UNDRIP in the period of 2007 has been pushed back because of the Enderoi decision.

I want to end there, and say how grateful I am again for being invited.

Works Cited

Gloppen, Siri. Courts and the Marginalized: Comparative Perspectives. Oxford: Oxford University Press, 2007.

FDCIP 2013 Best and Bad Practices Introduction

Best and Bad Practices: An Introduction

Professor Jens Dahl
Former Director of IWGIA and Member of the Forum Advisory Board

Since the turn of the millennium, Indigenous peoples have gained a number of achievements on the international scene, first of all within the United Nations system. In the first instance, it was the establishment of the Permanent Forum in the year 2000, which was followed by the establishment of the office of the UN Special Rapporteur on the Rights of Indigenous Peoples in 2001. In 2006, the Human Rights Council dissolved the Working Group on Indigenous Populations but two years later a new body saw the light of day when the Expert Mechanism on the Rights of Indigenous Peoples became an advisory body to the Human Rights Council. With these three bodies in existence, Indigenous peoples have achieved what no other subordinate group has been able to achieve within the United Nations system. These bodies were given legal frame and moral substance when the General Assembly of the United Nations, in 2007, adopted the Declaration on the Rights of Indigenous Peoples.

We celebrate these achievements and we praise those whose efforts made it possible. There is general agreement that after these milestone achievements the great challenge is the implementation of the rights as entrenched in the Declaration on the Rights of Indigenous Peoples.

But outside the corridors of the United Nations and the international legal mechanisms, the realities on the ground point in a completely different direction. Every day information reaches us about how the political rights of Indigenous peoples in Russia have been restricted, that Indigenous peoples in Malaysia and Indonesia are losing their lands to palm oil plantations, and pastoralists are being evicted from their lands in Africa to make way for national parks. Just as we thought that Indigenous peoples in countries like Bolivia and Canada were facing a new future we saw how oil, gas, and tar sands projects have deteriorated the lives of Indigenous peoples. My blunt observation is that Indigenous peoples worldwide have never been in a more precarious situation than is the case today. In spite of the progress made in Geneva and in New York.

This is why we, when we initiated the planning of this conference, decided to try to turn things a bit around and move away from the dominant discourse, which since the adoption of the Declaration has focused on the implementation of rights; instead we wanted to focus on the incorporation of rights by Indigenous peoples who live under conditions that vary enormously from country to country and from continent to continent. It is perhaps the same process but looked at from two different angles. So, my concern or my focus is in the first instance not upon the rights but on the peoples. I want us to move away from looking at Indigenous peoples as those adopting rights that have been established in corridors, which are outside their control, and look at Indigenous peoples as actors in their own destiny. I ask myself, who are the people who should benefit from the international rights of Indigenous peoples? What means are at their disposal for improving their living conditions and their rights as inhabitants of local communities and nation-states? What are the practical conditions for Indigenous peoples locally to have agency, to incorporate rights adopted in international fora and thus become their own advocates?

First, let me return to my blank statement that the fate of Indigenous peoples worldwide has deteriorated at the same time as the international legal rights mechanisms have improved their legal position significantly. There are significant variations, I know. It seems to be most serious in Africa caused by land grabbing, due to lands and territories set aside for national parks, etc. Countries like the UK, China, Saudi Arabia, the Emirates and others are buying or renting land on other continents to grow cash crops as well as subsistence crops for their own populations. The neo-liberal economy has opened for large evictions of peoples, not least Indigenous peoples, from their lands to be bought by investors of all kinds. In Asia, palm oil plantations are not only an environmental threat but Indigenous communities loose their fundamental rights and means of subsistence.

Unfortunately, there are many sad stories to tell. Even from one of the more democratic and developed African countries like Botswana. It was in 1992 that the first organisation of Bushmen or San, in that country managed to establish their first organisation, the First Peoples of the Kalahari, or FPK. A group of San lived under constant threat to be evicted from the Central Kalahari Game Reserve, and with their own organization, they were able to gain support from outside Botswana and to start challenging Botswana government policy. For two decades these San have fought for their rights in the media, in the court, and in the United Nations; and to some extent, they have been able to slow down the process that turned them into destitute squatters of settlements and towns on the fringes of the Central Kalahari Game Reserve. Today, however, the First Peoples of the Kalahari seem to be an organisation that is ripped apart due to yearlong mismanagement of finances, internal quarrels, and with a Board of Directors that have not met for years. The consequence is that, today, FPK is being dispossessed of properties, and in case it still exists in its name, it will be unable to operate. What the future holds for the people of the Central Kalahari Game Reserve, I am unable to predict, but my point with taking up this example is very simple: the First Peoples of the Kalahari have never developed the capacity to develop a strategy to incorporate those rights that are relevant for them in their Botswana setting. Organisations from outside the local realities, like IWGIA and Survival International that have supported FPK for many years, may be able to develop strategies on how to implement international rights in the Botswana legal system, but things fall apart too easily when the people concerned do not incorporate these rights. I guess that in this case we have come down to the basic question of capacity, simply: How do we run an organisation?

In Botswana as well as in the case that I will present now, the government is an obstacle and an impediment for the Indigenous peoples to have even their most elementary rights recognised. There is no room for negotiations when governments consider the Indigenous peoples as an obstacle to what they see as development. In such cases, the people concerned my choose to circumvent the state and go directly to the international community, alias the United Nations.

In 2001, a young Parakuiyo-Maasai, Adam Mwarabu, from Tanzania went for the first time to the United Nations to take part in the meeting of the Working Group on Indigenous Populations. He had become interested in Indigenous rights after having followed a court case against pastoralists from Mkomazi Game Reserve. In 2002, he acquired a UN fellowship and the year after, in 2003, he was instrumental in the establishment of the first organisation of his Parakuiyo people. This organisation, PAICODEO, registered in 2006, has since then been able to obtain funding for various capacity-raising activities, established a small office, sensitized pastoralist communities and to actively advocate and protect their basic human rights in terms of the use and management of land resources. The Parakuyio, as with other pastoralists, are constantly exposed to evictions from their lands, and Adam Mwarabu and PAICODEO has given interviews to newspapers, on television, and given statements to the parliament and met with ministers, etc. Most importantly, in my observation, is that they have mobilised people in, and across, local communities in a process in which people have understood that they must contribute with their own limited financial means. Furthermore, it seems to my superficial observation, that they also have acquired a realistic view in relation to what can be achieved politically under current conditions in Tanzania.

Let us compare this situation to that of the San in Botswana and ask why this has been possible.

First of all, PAICODEO has managed to merge traditional leadership with the legal and administrative demands of an NGO. The traditional leaders take part in the organisational and political processes and they do it across communities. Secondly, due to his year-long work with the United Nations as the leading person, Adam Mwarabu has been able to frame the identification as being Parakuyio and the traditional rights as pastoralists into the national and international legal language and thus forced the authorities to at least listen to them. In the words of James Scott when he writes about passive resistance: “It is only when the hidden transcript is openly declared that subordinates can fully recognize the full extent to which their claims, their dreams, their anger is shared by other subordinates with whom they have not been in direct touch” (Domination and the Arts of Resistance, p. 223). The human rights abuses continue this day, every day, but it no longer goes unnoticed. The third reason why PAICODEO seems to be able to achieve what the First Peoples of the Kalahari have not managed to – even after having been supported financially from outside for so many years – is that PAICODEO has been able to use knowledge provided by lawyers, researchers, and others and to establish trust relationships with other NGOs and donors. In all these respects, the case of PAICODEO is in sharp contrast to that of the San of the Central Kalahari Game Reserve.

But the deterioration of the rights of Indigenous peoples is not limited to the poorer continents. The political and legal attacks against Indigenous peoples in Russia are outrageous as we may learn more about during this conference. Even in Canada, one of the countries that firmly endorsed the establishment of the Permanent Forum, in the end also rejected the Declaration; things seem to fall apart. Following a recent official visit to Canada, the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, said in a concluding statement to the visit, that, and I quote “Canada faces a crisis when it comes to the situation of the Indigenous peoples in that country.” Among other things, he referred to the “high level of distrust” between Indigenous peoples and the authorities, to unresolved treaty rights, and the serious problems with substandard housing under Arctic and Sub-arctic conditions.

There also positive cases from the rich Arctic democracies, cases from which we should learn and I turn to the issue of capacity of Indigenous organisations. Only a few years ago, in 2009, the Inuit of Greenland gained self-rule within the Danish realm following thirty years of home-rule. Self-rule is as close to independence as any Indigenous group can expect to achieve. There are many historical reasons for this success, but let me restrict this to only mention some of those organisational factors that make the situation of the Inuit of Greenland different and from which we can learn. First of all, the Greenlanders had the negotiating capacity, including the ability to establish a dialogue with the Danish government, and they were from the very early steps of negotiation predisposed to negotiate with the Danish government. This negotiating capacity includes the ability to choose the conflict when this was needed but to do it in a non-confrontational manner, which allowed further negotiations. Secondly, the Greenlanders were strongly goal-oriented and they were willing to compromise without ever loosing the overall aim. Third, the negotiators were firmly entrenched in the Greenlandic society and were recognised to represent all Greenlanders.

So, 1) the Greenlanders had the negotiating capacity, some of which they had learned in the United Nations, 2) they were goal-oriented, 3) they were firmly rooted in the communities, but, they were also able to incorporate significant parts of the 2007 Declaration as legal arguments for their claims. Thus, they used the Declaration directly in their efforts to be recognized as a people according to international law.

If we shortly compare the case of the Inuit of Greenland with the Parakuyio of Tanzania and consider both experiences as best practices we are struck by some similarities and some differences. Both have acquired negotiating abilities in and during the process that lead to, among other things, the adoption of the Declaration on the Rights of Indigenous Peoples. But where the Inuit have used the language of the Declaration to become more independent of Denmark, as specified in Article 3, which says that “Indigenous peoples have the right to self-determination,” the Parakuyio’s main aim have been to obtain de facto equal rights with other citizens of that country by using Article 26 on land rights to frame traditional rights into the language of international law. When Article 26, 2 says that “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” it reveals that to the Parakuyio and many other Indigenous peoples in Africa have used the UN experience to create common understanding among themselves. This is self-determination in the Tanzanian perspective – quite different from the Inuit understanding of the same term.

A few minutes ago I quoted the anthropologist James Scott who, in his writing about the “Weapons of the Weak,” makes a distinction between the public and the hidden transcript. In a hegemonic relationship where the subordinates have no opportunity to make open rebellion people often turn to various forms of, mainly individual, deference. In such relationships the subordinates have learned, and I quote “to clothe their resistance and defiance in rituals of subordination that serve both to disguise their purposes and to provide them with a ready route of retreat that may soften the consequences of a possible failure” (Scott 1990, 96). The hidden transcript as mentioned and described by Scott (1990) covers individual deference in a wide variety of forms, ranging from work sabotage, poaching, gossip and a large number of physical disguises when the subordinate is confronted with the superior.

I have not seen anyone mentioning this, in a way very rudimentary strategy, as having been adopted among Indigenous peoples in Africa and this leads me to a very sad point in the history of Indigenous peoples, not only in Africa, but also in Russia, parts of the Americas, Australia and Asia.

In the initial colonial period the settlers to North America, Australia and southern Africa depended on establishing friendly relations with the Aboriginal populations, but, as soon as they had established themselves, they no longer relied on these groups but on their lands and the Aboriginal people were wiped off their lands. Passive resistance as a “weapon of the weak” does not help here. Why? Because governments and companies do not need Indigenous peoples! They only need their lands. The dominance of the state is not that of a mutual, although hegemonic, relationship because the Indigenous peoples are superfluous to the neo-liberal policies of the states and companies.

Today, a similar process takes place in Africa, in Asia and other parts of the Indigenous world. Governments and the companies do not need Indigenous peoples – they are only seen as an obstacle to development. For governments and companies are no reasons for establishing hegemonic relationships. There are no power relations – there are no relationships. This is important because we find here, maybe, the prime reason for the discrepancy between the achievements that Indigenous peoples have gained in the United Nations and the developments on the ground.

In Latin America the picture is more complicated because of the numerical number of Indigenous peoples in many countries is quite high and because the Indigenous communities are important to the national economy and cannot be replaced. Only in the lowlands and in the Amazon we find a situation similar to that of Africa.

What I have advocated for today is that the rights of Indigenous peoples being interpreted from the practices realities on the ground. Or in other words, the capacity of Indigenous peoples to incorporate international legal standards in order to improve their daily living conditions. When we, however, look at the success that Indigenous peoples have had on the international scene there are, in my opinion, some observations that are relevant in each and every Indigenous community.

The first, and very simple one, is that Indigenous peoples need to be organized in order to be able to deal with governments.

The second observation is that Indigenous peoples created alliances among themselves and in this process they continuously negotiated and renegotiated their identity and their positions towards the states. Indigenous peoples created a space for themselves, a space that was inclusive and new Indigenous groups were continuously incorporated. Indigenous peoples created bonds of solidarity rather than each group trying to promote their own agenda.

The third observation is that Indigenous peoples developed a highly advanced system of negotiating with governments based upon a structure that allowed them to meet and to reach consensus and to elect delegates that can represent the group as a whole.

These three observations from the United Nations are worth remembering as pre-conditions for those who, on the ground, wish to incorporate and use international legal standards in their day-to-day dealing with often not too friendly governments.

Finally, I would like to make a few remarks on the means adopted by Indigenous peoples in order to reach their goals. In the early days of the Indigenous peoples’ appearance at the United Nations they played the card of being the “other.” They turned around the prejudices and stereotypes prevalent by most representatives of states and made it active and made them into symbols that said: “we are different.” It worked! They also played the David and Goliath card and shamed the powerful governments and multinational companies in their policies against small Indigenous minorities who became victims. It worked! And with great success they used walkouts, which worked when governments had become politically dependent on some kind of participation of Indigenous peoples in the process.

Such means are not necessarily available for Indigenous peoples in their local settings. But sometimes it works. Let me just remind you about the Sámi who put up their traditional Sámi tents in front of the Norwegian Parliament in protest against the building of the Alta dam. These Sámi played the exotic card as well as David against Goliath. Or the Indigenous women of the Philippine Cordillera Mountains to protest against the building of another dam; they physically blocked the way for the heavy machineries.

There are at least two global trends in how governments deal with Indigenous peoples. One is, as I have highlighted, that Indigenous peoples increasingly have become obstacles to what governments see as development in a period when neo-liberal thinking is completely dominating.

My point is that in such a period, where Indigenous peoples are faced with a deterioration of their living condition and face continuous violations of their human rights, the solution may not be found in legal arguments, but in making the world aware of the situation by applying types of civil disobedience or non-violent means of active protests.

The other trend is that a number of governments who were in the forefront to have Indigenous rights recognized by the United Nations, since 2007, in the best case have lost interest in the Indigenous issues and in the worst case see them as an obstacle in a period of economic crisis.