DOCUMENT: SI_UN85.TXT U N I T E D N A T I O N S U.N. WORKING GROUP ON INDIGENOUS POPULATIONS E/CN.4/Sub.2/AC.4/1985/WP.4/Add.3 [Original: ENGLISH] Geneva, 29 July-2 August, 1985 [26 July 1985] SURVIVAL INTERNATIONAL THE ABUSE OF INDIGENOUS PEOPLES' LAND RIGHTS AND NATIONAL LEGISLATION INTRODUCTION Survival International is a human rights organization, with consultative status as a NGO at the United Nations, which defends the rights of threatened tribal peoples to survival, self-determination and the use and ownership of their traditional lands. In its previous sessions, through the representations of indigenous delegates, and especially through the valuable Martinez-Cobo report, the Working Group has already made significant headway towards the setting of standards concerning the rights of indigenous peoples, especially with regard to their rights to land and to natural resources. As noted in the Report of the Working Group on its third session, it is expected that these issues might be further considered at the fourth session (E/CN.4/Sub.2/1984/20 Annex 1). This submission is offered as a contribution to these further discussions (see also E/CN.4/Sub.2/1984/20, sections 17 and 19). A key problem for many indigenous peoples lies in the national legislation imposed on them by the nation States within whose borders indigenous peoples now find themselves. Frequently this legislation provides them with inadequate rights to their lands leading to the invasion of their territories, the destructive exploitation of their natural resources and eventually to their own destruction and annihilation as distinctive peoples. In certain cases it is clear that powerful economic interest groups within these nation States purposefully manipulate such legislation to hasten the destruction of indigenous communities and populations. In other countries the imposed legislation fails to take account of the special needs and demands of indigenous peoples because of a complete ignorance about such peoples' unique ways of life. Such ignorance very often derives from the racist and/or ethnocentric attitudes that the majority populations hold concerning indigenous ethnic minorities. Such attitudes provide the legal and political platforms that lead to an inadequate protection, and thus violation, of their rights. From this perspective it can be seen that the violation of indigenous peoples' rights even extends to the way their situation is (mis-)represented to western audiences, as for example in the current exhibition at the Museum of Mankind in London. Over the past year Survival International has documented in detail a large number of problems faced by indigenous peoples that derive principally from the inadequacies of national legislation. The notes provided below summarize a number of such cases. CASE STUDIES INDIA There are approximately 40 million people in India locally known as adivasis, a term that is usually translated as meaning "original people". Many of these l peoples are descendants of the original peoples of the sub-continent who inhabited the area before waves of Dravidian-speaking and then Aryan peoples overran the whole area. Belonging to around 400 different ethnic communities, they are associated mainly with the shrinking forest areas of the country. These peoples, today mostly registered by the State as members of the SCHEDULED TRIBES, are the subjects of a number of special laws designed to ensure their progressive and unprejudiced incorporation into the life of the nation. Under such laws, members of the SCHEDULED TRIBES are assured a certain proportion of places in the national administration and educational systems. Unfortunately, the Indian legal system does not, however, mike special provisions for the land rights of members of the SCHEDULED TRIBES. On the contrary it is a well documented fact that legislation relating to land tenure in India has proved extremely prejudicial to tribal peoples. Traditional concepts of land ownership are not taken into account by Indian laws, in spite of the fact that India is a signatory of the International Labour Organisation's Convention 107. In general, tribal peoples in India can only gain freehold title to their land as INDIVIDUALS, by registering their cultivated plots with the village level representatives of the fiscal administration (PATWARI). This system of land holding is entirely unsuited to tribal peoples who traditionally practise shifting cultivation or subsist from the gathering of minor forest produce and is also incompatible with traditional concepts of COLLECTIVE land ownership. For many tribal peoples in India the concepts Of private land ownership and the idea of treating land as a negotiable commodity are entirely foreign to them. Consequently, when tribal peoples' areas are subject to outside pressure and land speculation, they are often easily dispossessed of their traditional lands. The insecure position of tribal peoples with regard to land ownership is compounded by the numerous forestry laws which have been applied to their traditional lands. Vast areas of tribal territory have been arrogated to the State as "forest reserves" in which tribal peoples have minimal rights. Since they are in fact completely dependent on these areas for their survival, this legislation exposes them to the corrupt offices of forestry officials who selectively apply the forestry laws to suit their own pockets. Ironically, the creation of forest reserves, while denying aboriginal concepts of land tenure, has in many areas actually intensified the pressure on the tribals' lands. Huge tracts of tribal land have been leased by State authorities to timber merchants and paper mills for the extraction of wood and bamboo. The inadequacy of Indian laws regarding tribal land rights is most clearly revealed in situations where their lands are expropriated by the State for major development projects such as hydropower schemes. According to one World Bank estimate there are at present two million tribal people in India who face being resettled to make way for hydropower projects. Yet because Indian law does not recognize tribal peoples' rights to their traditional lands they are unlikely to receive compensation for the 1088 of more than a tiny fraction of their traditional areas. SARDAR SAROVAR An example of this problem is provided by the Sardar Sarovar scheme a massive World Bank funded hydropower development on the borders of Gujarat, Madhya Pradesh and Maharashtra states. The dam itself will be 155 metres high and will impound a reservoir submerging approximately 370 square kilometres. It will have an installed capacity of 1,450 megawatts and will provide 40,000 cusecs of irrigation water to 12 of the 19 districts of Gujarat and even parts of Rajasthan, served by a main canal over 440 km long. The total project will cost over SIX BILLION dollars at 1983 prices. Some 236 communities in three different states will have to be relocated to make way for the Sardar Sarovar scheme. A total of more than 67,340 people. Of these as many as 59,572 are tribal peoples though for various reasons these figures are probably underestimates. TRIBAL PEOPLES AT RISK The tribals, whose futures are set in jeopardy by the Sardar Sarovar Project, belong in the majority to the groups referred to as Tadavis, Vasavas, Dungari Bhils, Rathwas, Naikas and Goval. Of these the Tadavis predominate, constituting some 65 per cent of the population to be affected. The Dungari Bhils are the second largest group, making up about 25 per cent. The groups vary considerably in the extent of their insertion into the national economy. Some groups are virtually landless and have migrated into the area relatively recently. They survive as a migrant labour force. The majority, however, have been in the area as long as historical records relate. Some communities, especially those in Madhya Pradesh, practice an efficient agricultural system on their rain fed fields, which is notable for being more productive than that of their non-tribal neighbours. The more isolated Bhils remain essentially marginal to the market economy. They are held in low esteem locally. According to one of the government officials directing the rehabilitation programme associated with the project: "they are in a 'jungle state': we are bringing them into civilization". The great majority of these tribal people are, according to the laws summarized above, "landless". Many of the tribals work lands that are in fact titled to an elder relative. Large parts of the tribal territories have been arrogated to the State through their designation as "Forest Reserves". Other tribal areas have been designated as (State-owned) "waste lands" and "traverse (KHARABA) land". In spite of the fact that these people may be practicing agriculture on what they consider their traditional territories, the State regards them as "landless": their cultivations on State lands are "illegal encroachments". The tribals' use of their traditional lands extends far beyond the small plots that they cultivate. Some 32 per cent of their area remains under forest cover, despite the depredations made by local contractors to supply the woodfuel and timber needs of the growing urban centres and the voracious demands for pulp. For the tribals the forests supply them with essential supplements to their economies. Fodder for their draft animals, fuelwood for their cooking, materials for building their houses and minor forest produce for sale in the regional markets. THE EFFECTS OF RESETTLEMENT In a detailed assessment of the likely impact of the Sardar Sarovar project, a World Bank official has noted that it is generally true that such projects are carried out against the will of the majority of those to be relocated. These people are, according to the same report, generally "relatively isolated, illiterate, low income and powerless rural people with strong ties to their land and to community groupings larger than the family". Relocation for these people can, according to the World Bank, "be expected to cause multi-dimensional stress". The stress associated with relocation is analysed in the Bank's study in terms of three categories. "Psychological" stress includes the "grieving-for-a-lost- home syndrome", "anxiety for the future" and "feelings of impotence associates with one's inability to protect one's home and community from disruption". These stresses may become so great as to cause problems under the second category of stress, "physiological", discernible as an actual increase in health disorders. While such stress problems may be reversible, the stress factors that come under the rubric "socio-cultural stress" may not be. The "cessation of a range of familiar and satisfying economic, social and religious activities which are tied to the oustees old home" are related to an overall breakdown in society, particularly political structures. The leaders of the "oustee" communities find themselves in a "no-win situation", since they lose legitimacy if they approve the removal of their people against the will of the majority, AND if they oppose the removal, because ultimately they are proved powerless. Of course, such an analysis tells only a small part of the story. The removal of tribal peoples from their ancestral lands to make way for development is generally fatal for the entire way of life of the tribal communities. Traditional marriage systems that link together neighbouring communities are critically disrupted by relocation and are rarely reconstituted. The close ties between the society and the traditional forest environment are broken. Subtle patterns of resource use, developed over centuries, are shattered. Social and religious ceremonies linking the tribals to their environment and to specific burial grounds and sacred sites become meaningless. The very ground of their being is cut from them. Moreover, as the World Bank recognizes, "rehabilitation" following removal is unlikely to benefit the tribals even financially. According to the World Bank "the odds are high that the majority of (Sardar Sarovar's) ... oustees will be worse off following removal". "The current policies ... will not only lower living standards among large numbers of oustees but accelerate the process of environmental degradation". PROBLEMS WITH COMPULSORY RELOCATION The World Bank's sanguine appraisal of the prospects for the "oustees" is based on a detailed evaluation of previous resettlement programmes carried out in India. Seven factors have been isolated by this study as largely responsible for this sorry record: 1. The absence of a national policy regarding resettlement; 2. Certain provisions of the 1894 Land Acquisitions Act; 3. The emphasis on cash compensation; 4. The tendency to relocate oustees as individual households rather than as communities; 5. The failure of the government to make use of social science expertise relating to compulsory relocation; 6. The execution of the relocation by the Irrigation and Revenue Departments, which are neither qualified nor motivated to carry out the task; 7. The almost total absence of a system for monitoring the evaluating the relocation programme. Tensions are generated among the oustees because cash compensation is only paid to "legal" land-owners, giving rise to rivalries and jealousies. Community ties are further broken by the piecemeal pattern of relocation. Many of the tribals declared "landless" receive no compensation at all. Those who do, unused to treating land as a saleable commodity and inexperienced in the use of cash anyway, fall easy prey to the unscrupulous. Besides, the prices paid for land are frequently nugatory and inadequate for the tribals to acquire equivalent land on the market. Land speculation and rising land prices in the relocation areas exaggerate the problem. Other members of the local communities who made a living as artisans etc., deprived of the communities they depended on, become destitute. Even where tribals do manage to resettle on pieces of land, they are deprived of contact with their traditional environment. Forest produce, once integral to their way of life, becomes unobtainable. Finally, the increased pressure on resources as the landless oustees seek to make a living by clearing cultivations on watersheds and in other marginal areas accelerates the process of environmental degradation. WORLD BANK RECOMMENDATIONS The World Bank's internal document, referred to here, also makes specific recommendations for overcoming these problems. A national policy regarding resettlement programmes should be carefully worked out. Measures should be taken to ensure that all oustees are given land in compensation, not just those who have managed to obtain legal title. Resettlement should take into consideration the preferences of the peoples themselves to be relocated as communities. Cash compensation should only be offered to oustees who reject compensation with land. Resettlement should become the responsibility of a specially created government agency which should solicit the advice of local representatives and community development groups active on the tribals behalf. Careful plans should be laid not just for relocating the oustees but for promoting their economic development after relocation and the programme should be continuously monitored to allow for modifications in the procedures. These recommendations, if followed, would certainly do much to improve the lot of the oustees. Nevertheless, they do not satisfy the requirements of international law ratified by the Indian Governments According to the International Labour Organisation's Convention 107, relating to Tribal and Indigenous Populations, which has been signed by India: ARTICLE 6. The improvement of the conditions of life and work and level of education of the populations concerned shall be given HIGH PRIORITY in plans for the overall economic development of areas inhabited by these populations. Special projects for the economic development of the areas in question shall also be designed as to promote such improvement. (Emphasis added). In fact, however, even if the World Bank's recommendations are followed, only 2 per cent of the costs of the Sardar Sarovar scheme will be spent on the resettlement programme. As things stands only 1 per cent have been allocated to the relocation less than has been spent housing the few hundred project staff. Other stipulations of the same convention are also ignored in the World Bank' recommendations, which only call for recognition of all the tribals' cultivations, not their traditional lands. ARTICLE 11. The right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations TRADITIONALLY occupy shall be recognized. (Emphasis added). ARTICLE 12. 2. When in such cases removal of these populations is necessary as an exceptional measure, they shall be provided with lands of quality at least equal to that of the lands previously occupied by them, suitable for their present needs and future development. Although the World Bank's involvement in the project dates back several years agreements with the Governments of India and the states of Gujarat, Madhya Pradesh and Maharashtra were only finally negotiated in March-April 1985, in response to growing international pressure. While it is clear that there is genuine concern within the Bank to create a fair deal for the tribal oustees, it remains uncertain to what extent it is prepared to put pressure on the Indian authorities to comply with international law. As things stand the Bank seems to be in clear breach of its guidelines regarding development in tribal areas. RECENT DEVELOPMENTS Recent developments in the situation of the tribal oustees being moved to make way for the Sardar Sarovar project suggest that there is little hope that even the compromise agreements worked out between the Bank and the Indian authorities will be followed. Attention has focused on the 19 Communities in Gujarat that are already in the process of being relocated and who are already experiencing severe problems. Whereas the Gujarat authorities have made public statements promising to fairly compensate ALL the tribals for the loss of their lands, they have consistently refused to set this promise down in writing. The case has been taken to the Supreme Court of India, where it has become clear from one after another affidavit being filed by the Government of Gujarat that it regards the "wasteland" and "forest reserve" cultivations of the tribals as nothing more than illegal encroachments on state land, for the loss of which they deserve no compensation. Moreover, in response to claims for the release of State-owned "Forest Reserves" for the rehabilitation of the tribal oustees, the Government has argued that: "Resettling the tribals on Government land would involve using forest areas. This would have caused an ecological imbalance and led to the destruction of valuable resources". The supreme irony of the fact that the Government is at the same time engaged in a massive project that will flood 11 per cent of all the forests of the Narmada Valley has apparently escaped the Government's comprehension. While the Government presses ahead with its development goals the question must be asked: "development for whom?". In Gujarat there are tribal villages with pylons set down right in the middle of them that are not even electrified. CONCLUSION The present legislation regarding land tenure in India does not make provision for the special relationship that tribal peoples hold with their lands. Especially where large scale development projects are carried out in tribal areas this lack of land rights have caused them severe problems. This fact is even recognized by the Department of Tribal Development of the Indian Government's Ministry of Home Affairs itself, which has stated that: "Lands acquired for such public works as industrial, mining, power, irrigation and even some forest projects has led to displacement of a large number of tribal families. Since these families have not been capable of claiming a share in the new activities for want of education, enterprise and skill, they were rendered more or less resourceless and, in some cases, destitute." Observers of this tragic process who are not compromised by their positions within government have been able to be somewhat more outspoken about it: "In a country like India, with a high population density and high level of poverty, virtually every ecological niche is occupied by some occupational or cultural human group for its sustenance. Each time an ecological niche is degraded or its resources appropriated by the more powerful in society, the deprived weaker sections become further impoverished. For instance, the steady destruction of our natural forests, pasture lands and coastal water bodies has not only meant an increased economic poverty for millions of tribals, nomads and traditional fisherfolk, but also a slow cultural and social death: a dismal change from rugged self-sufficient human beings to abjectly dependent landless labourers and squalor-stricken urban migrants. Current development can in fact be described as the process by which the rich and more powerful reallocate the nation's natural resources in their favour and modern technology is the tool that subserves this process." -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: :: -= THE FOURTH WORLD DOCUMENTATION PROJECT =- :: :: A service provided by :: :: The Center For World Indigenous Studies :: :: www.cwis.org :: ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: Originating at the Center for World Indigenous Studies, Olympia, Washington USA www.cwis.org © 1999 Center for World Indigenous Studies (All Rights Reserved. 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