Litigating indigenous land rights: a model for conservation

By Lucy Claridge

MRG’s strategic litigation programme was established in 2002, in response to the clear need for specific legal tools to combat violations of the rights of minority and indigenous communities throughout the world. It aims to improve the capacity of minorities and indigenous peoples to access the legal protection afforded by international instruments on human rights and the various bodies that enforce them. The programme holds governments and other private actors to account for human rights abuses, by bringing landmark test cases before regional, international and domestic bodies.

The legal programme also builds the capacity of local minority and indigenous communities and those representing them to both monitor human rights abuses during the course of the litigation and related advocacy, and to demand the implementation of their rights outside the framework of the programme. This includes the provision of paralegal training specifically developed to match the needs of each community, and training on how to advocate for rights before regional and international mechanisms.

Over the years, it has become one of the leading human rights litigation programmes on minority and indigenous issues, covering many thematic areas such as descent-based slavery (in West Africa), political disenfranchisement and discrimination in accessing public services (in Eastern Europe and Southern Africa), and access to and enjoyment of ancestral lands (across East and Central Africa).

Land rights litigation was commenced by MRG on behalf of indigenous communities as an effort to find solutions to historically embedded land disputes. While much of the world’s land is held communally by indigenous peoples and other communities, under systems of traditional and collective ownership, many governments fail to recognize these claims. As a result, their territories have frequently been allocated to investors for other uses, including development, agribusiness, tourism and conservation. For indigenous peoples, which have deep spiritual, cultural, social and economic connections with their lands, making them central to their identity and indeed their very existence, the effects are catastrophic.

As the effects of climate change intensify and the pressure to take steps to address its consequences mounts exponentially, there has been increasing recognition that indigenous peoples – hunters, fishers and herders – have a central role to play as environmental stewards. In fact, although indigenous peoples make up less than 5 per cent of the world’s population, they are believed to safeguard as much as 80 per cent of the world’s remaining biodiversity. Dependent on their communally owned lands for their survival, indigenous peoples possess in-depth, traditional knowledge of how best to conserve natural resources, protect biodiversity, and mitigate or adapt to the effects of climate change.

Yet governments and other key international actors have done little to cultivate indigenous peoples as allies, preferring instead to adopt the ‘fortress conservation’ model – an approach that often involves the eviction of indigenous inhabitants from forests and other areas in the name of environmental protection. This is despite research showing that this not only results in serious human rights violations but is also ineffective in achieving its aim as it side-lines the traditional knowledge and lived experiences of communities – vital assets in ensuring the sustainable use and preservation of natural resources and ecosystems.

One particularly egregious example of this is the displacement of Kenya’s indigenous Endorois from their ancestral lands in the 1970s to create the Lake Bogoria National Reserve, now a UNESCO World Heritage Site. In 2010, MRG secured a successful ruling from the African Commission on Human and Peoples’ Rights in favour of the Endorois, declaring their eviction illegal and finding that the Kenyan government had violated certain fundamental rights of the community protected under the African Charter on Human and Peoples’ Rights and other international instruments. Building on this success, MRG has supported a successful claim by the Ogiek community to return to their land in Kenya’s Mau Forest.

Photo: An Ogiek woman on her ancestral lands, Mau Forest, Kenya