Law Alter Views
Land
Righs of the Indigenous Peoples
Kawser
Ahmed
This
article is written as a sequel to my earlier article entitled
"Between Empire and Nationalism: The marginalisation
of the indigenous people in Bangladesh" published
in Law and our rights page wherein I have tried to demonstrate
that changing dimension of mainstream politics, i.e. from
a secularist tradition to reintroduction of Islam based
nationalism, is one of the prominent reasons for marginalisation
of the indigenous peoples in Bangladesh. In that article
I have also maintained that the political trend in Bangladesh
should be set in a secular way in order that a wholesome
congenial political and social atmosphere may come along
for the protection and promotion of the rights of the
indigenous peoples. Along with this, I have advisedly
made an observation that there are some problems pertaining
to the indigenous peoples which are not soluble except
for some legal mechanism. The problem relating to land
rights of the indigenous peoples is of such nature.
Presently,
the rubric concerning the idea of land rights of the indigenous
peoples owes directly to international law. In international
law, a number of recent prescripts like the Indigenous
and Tribal Peoples Convention 1989, the Indigenous and
Tribal Populations Convention 1957 and the UN Draft Declaration
on the Rights of the Indigenous Peoples have advocated
for the land rights of the indigenous peoples. Here it
begs some pertinent questions: why did international law
take so much time to recognise the rights of the indigenous
people, especially land rights; why the European and North
American states are so reluctant to sign any convention
on the rights of the indigenous peoples? The answer to
this question will take us to the heart of the matter
in question to be addressed in this article. To deal with
it very concisely from a theoretical standpoint, it is
suffice to sayhistorically the indigenous peoples are
missing factors in modern sate-making process for a variety
of reasons. Since state is the most prominent actor in
both national and international law making process and
there was lack of effective participation in the state
mechanism by the indigenous peoples, states have never
espoused indigenous cause, which has engendered their
legal deprivation in national and international law.
The
statement made above appears to be more evident in those
cases where European settlers or colonisers had occupied
and made settlement in the regions inhabited by the indigenous
peoples. Throughout the period of late middle age down
to 19th century, the eurocentricism in both legal scholarship
and military power had given European nations an unrivalled
opportunity to interpret international law from their
own respective standpoint, and in defining the legal status
of the indigenous peoples they have taken full opportunity
of it to legitimise their activities by some unjust doctrines
like terra nullius, just war or other methods like conquests,
unequal treaties etc. Though scholars like Grotius, Vittoria,
Pufendorf and vattel considered them to be "political
entities with territorial rights, we see that this status
was played down later during the nineteenth century. In
early decades of the twentieth century, the indigenous
peoples were thrown outside the purview of international
law. Such as, in the Island of Palmas case, the Permanent
Court of International Justice declared that agreements
with native princes or chiefs of indigenous peoples did
not create rights and obligations such as may, in international
law arise out of treaties. A few years later the Permanent
Court of International Justice went as far as in the Legal
Status of Eastern Greenland case, 1933 that the indigenous
peoples of Greenland could not acquire sovereignty by
conquest.
In
the second phase, when settler communities in those colonies
became large enough to establish their own states and
did so eventually, the colonialist attitude of the ruling
class to the indigenous people in the newly emergent states
did not change overnight. The establishment of modern
states by the colonialist settlers in the indigenous populated
territories paved the way for a far better legal interference
in the land rights of the indigenous peoples because it
is an axiom of modern political science that state has
sovereign power over its territory. Here we are not going
to make a critical analysis of jus imperium power of state
because it is not pertinent in the present discussion,
yet it is true that the doctrine of jus imperium has always
come handy for the ruling class to eject the indigenous
people from their land.
United
States, Canada and Australia can be regarded as very good
case in points to exemplify this situation. These countries
still assert or previously asserted jus imperium power
to "extinguish" the land titles and rights of
the indigenous peoples within their borders, without the
consent of the indigenous peoples by means of enactments
or judicial and administrative orders. The process of
'extinguishment' includes voluntary purchase and sale
of title, outright taking or expropriation, without just
compensation. One clear example of the problem of extinguishment
is manifested in the case of the Tee-Hit-Ton Indians v.
United States, 348 U.S. 272 (1995). "In this case
the Supreme Court decided that the United States may (with
limited exceptions) take or confiscate the land or property
of an Indian tribe without due process of law and without
paying just compensation, this despite the fact that the
United States Constitution explicitly provides that the
Government may not take property without due process of
law and just compensation. The Supreme Court found that
property held by aboriginal title, as most Indian land
is, is not entitled to the constitutional protection that
is accorded all other property". [UN Doc. E/CN.4/Sub.2/2001/21].
In the final working paper on the Prevention of Discrimination
and Protection of Indigenous Peoples and Minorities, the
special rapporteur Mrs. Erica-Irene A. Daes has noted
about it as follows:
"The
legal doctrine created by this case continues to be the
governing law on this matter in the United States today.
The racially discriminatory character of the decision
has not prevented this doctrine from being freely used
by the courts and by the United States Congress in legislation,
even in recent years. Indeed the Congress relied on this
doctrine in 1971 when it extinguished all the land rights
and claims of practically every one of the 226 indigenous
nations and tribes in Alaska by adopting the Alaska Native
Claims Settlement Act." [ UN Doc. E/CN.4/Sub.2/2001/21].
Another
clear example is Mabo v. Queensland, 1992 wherein
the High Court of Australia ruled that though the doctrine
of terra nullius is not applicable to deny rights of the
indigenous peoples to land, the Crown is vested with sovereign
power of to extinguish native title. Nonetheless the Court
held that native title may be extinguished by legislation,
by alienation of land by the Crown or by appropriation
of land by the Crown in a manner inconsistent with the
continuation of native title. The Native Title Amendment
Act, 1998 has provided a number of means by which indigenous
title can be extinguished and preference of rights of
non-native title holders over those of native title holders.
The Committee on the Elimination of Racial Discrimination
has found various provisions of the Act discriminatory
[Decision (2) 54 on Australia, 18 March 1999 (A/54/18,
Para. 21)].
The
position of Canadian law seems less harsh in regard to
indigenous people's right to land. Although the Constitution
Act of 1982 does not allow government to "extinguish"
aboriginal rights over land, it may be encroached on by
the "justified" needs of the larger society.
Chief Justice Lamer of the Supreme Court of Canada in
a case has mentioned some grounds on which he has held
infringement on aboriginal title is justified. Needless
to say, the grounds are not at all commensurate with values
and purpose of indigenous peoples. [Delgamuukw vs.
The Queen, paragraph 165 of the Chief Justice's opinion,
unpublished decision, 11 December 1997. Also see UN Doc.
E/CN.4/Sub.2/2001/21].
Now
let us turn our attention to situation prevailing in Bangladesh.
Shortly speaking, the traditional land rights of the indigenous
peoples came under attack by British colonisation and
subsequent implementation of imperial laws regarding land
and revenue management. The general landlord-tenant relationship
created by the British law did not feature any special
indigenous rights as such. In 1950, the State Acquisition
and Tenancy Act also did not recognise any special rights
of the indigenous peoples attached to land. However the
legal regime regarding indigenous people based on land
entitlement is clearly divisible into two categories:
1. legal regime created under CHT Peace Accord signed
on December 2, 1997 between the National Committee on
Chittagong Hill Tracts and the Parbattya Chattagram Janasanghati
Samity, and 2. legal regime in which the State Acquisition
and Tenancy Act 1950 and other laws are applicable.
An
important feature of the CHT Peace Accord is that by virtue
of section 26 of part "B" management of land
excluding reserved forest, Kaptai Hydroelectricity Project
area, Betbunia Satellite Station area, state-owned industrial
enterprises and lands recorded in the name of the government
has been vested in the Parbatya Zilla Parishad. Furthermore
the government has been debarred from right to acquire
or transfer any lands, hills and forests under the jurisdictions
of the Hill District Parishad without prior discussion
and approval of the Parishad. Yet the Peace Accord has
some weakness like non-recognition by the Constitution,
or delay in establishing land-commission etc.
Elsewhere
in the country other than CHT, the indigenous peoples
do not have as much rights as is guaranteed under the
CHT Peace Accord. In those places their land tenures are
regulated by general laws which have shoved them to a
greater magnitude of vulnerability. Because, alongside
state's intervention, there are threats of eviction from
land grabbers, influential figures and tea-estates. So
what should be done right now is to chart out the areas
heavily inhabited by the indigenous peoples, and give
confirmation of their land rights by making special laws.
Otherwise we are going to exterminate the descendants
of the first human beings on earth.
The
author has graduated from Department of Law, University
of Dhaka.
Photo:
Star
