Introduction

The Law on the Protection and Promotion of the Rights of Indigenous Pygmy PeoplesFootnote ¹ was adopted by the Democratic Republic of Congo’s (DRC’s) Parliament in April 2021, and then became law in November 2022. Until this point, the collective ownership of land was largely unrecognized: with Indigenous Peoples’ occupying lands they did not “legally” own and over which they had no enforceable rights (Ubink, Reference Ubink, Ubink, Hoekema and Assies2009). The precariousness of customary land tenure in the DRC has contributed to the persistent poverty experienced by Indigenous Peoples. Without secure rights to land, the survival of Indigenous Peoples has been, and continues to be threatened.

In addition, Indigenous Peoples were largely unrecognized as distinct legal peoples with unique rights in the DRC. Indeed, the country has for many years contested the adoption of specific laws for protecting Indigenous Peoples and securing their land rights.Footnote ² The mobilization and advocacy of non-government organizations (NGOs) and Indigenous Peoples led to the adoption of the Law on Indigenous Peoples in 2022, but there remain many deep-seated barriers to the implementation of this law.

The DRC asserts ownership to all lands in the country. The state does allow, on a discretionary basis, Indigenous communities to exercise some access and use rights to their lands through various institutional mechanisms, including individual titling and registration. However, legal gaps and loopholes mean customary tenure is seldom recognized and titled, and the result is that Indigenous Peoples have pursued an alternative pathway to have their land tenure strengthened (Ubink, Reference Ubink, Ubink, Hoekema and Assies2009).

This pathway consists of statutory opportunities to secure customary rights over forests and forest lands through the local communities’ forest concessions (CFCLs).Footnote ³ The CFCLs have been the main option for Indigenous communities to secure some form of collective property rights over lands and resources. The CFCLs are one of the most ground-breaking legal developments in the Congo Basin rainforests in recent years.

While there is much to celebrate with the CFCLs, there are major shortcomings in the current legal framework, including bureaucratic constraints and “red tape,” institutional gaps, a lack of legal representation and gender mainstreaming, and the ongoing problem of elite capture (Rainforest Foundation UK, 2014).

This chapter first explains the concept of Indigenous Peoples in the DRC, and explores the nation’s historical background to land tenure. The chapter then examines how various legal and institutional mechanisms support the recognition and reclamation of Indigenous Peoples’ land rights. The chapter further explains how CFCLs emerged as an alternative pathway to secure some form of rights to customary lands in the DRC, drawing on a successful example from Kasai-Central province in reclaiming lands. Despite this success, the CFCLs do not offer a strong form of land tenure, and the chapter reflects on ways to strengthen the recognition and reclamation of Indigenous Peoples’ land rights.

Indigenous Peoples and the DRC

The Baka, Bambuti, and Batwa peoples are recognized as the first inhabitants of the DRC – they are the nation’s Indigenous Peoples.Footnote ⁴ In many instances, they continue to live in close connection to their lands. From 2000 BC onwards, other groups such as the Bantu, Nilotes, and Sudanese also migrated to this territory, where they set up the Kongo, Luba, and Lunda kingdoms. Indigenous Peoples often sought refuge in the equatorial forests (Musafiri, Reference Musafiri2009).

The Baka, Bambuti, and Batwa peoples have, for political and other reasons, been referred to as “Pygmy” peoples and nomadic hunter-gatherers by those who came after them – the Bantu, Nilotes, Sudanese, and then the Europeans with the goal of dispossessing them of their lands, such as under the concept of terra nullius (Barber, Reference Barber2022).

Unlike the typically agricultural and pastoral-based Bantu, Nilotes, and Sudanese societies, the Baka, Bambuti, and Batwa do not have structured chieftainships; rather, they have kinship-style systems and relationships to land connected to the spirits of their ancestors. Land ownership and access are based on family lineage and social groupings. Areas for hunting and gathering tend to be extensive and overlap with other uses and users. Traditional Indigenous society has been characterized as essentially egalitarian. Men are born heads of family, while women manage household resources and decide on important family matters. At the group level, decisions are made on a consensus basis and elders are acknowledged and respected for their wisdom (IWGIA, 2012).

Until the 1950s, the Baka, Bambuti, and Batwa lived as nomadic hunter-gatherers, dependent on the forest or savannah and its produce. Many Indigenous Peoples today reside in permanent settlements away from their lands, a result of the expansion of agriculture, logging and mining concessions, and the creation of protected areas and other nature conservation initiatives. Evicted from their ancestral lands, many of the Baka, Batwa, and Bambuti have ended up as landless squatters on the outskirts of Bantu villages, increasingly dependent on a cash economy to which they have very limited access (IWGIA, 2012). Sedentarization also means acculturation and the loss of social and cultural identities.

Today, the DRC is a multi-ethnic country with some 250 ethnic groups. The exact number of Indigenous Peoples in the DRC is unknown, but official estimates suggest they number around 600,000 people, or one percent of the total population. NGOs estimate that this number is likely around one million Indigenous Peoples. Between 30,000 and 40,000 Indigenous Peoples live in the forest as nomadic hunter-gatherers or in semi-nomadic or sedentary communities. A sizable number of Indigenous Peoples live as internally displaced persons in the still conflict-ridden eastern part of the country (IWGIA, 2012). Indigenous Peoples more often experience poverty in the country, and they are more likely to suffer from weak livelihood conditions, are regularly exposed to human rights violations, and continue to be neglected in forest governance issues. Indigenous Peoples are more likely to lack access to health care and education. They are the victims of pervasive discrimination, have no political representation at the local or the national level, and their traditional cultures are at serious risk (IWGIA, 2012).

Dispossession

The arrival of Europeans saw them signing treaties and other agreements with the Kings or Chiefs of the Bantu, Nilotes, and Sudanese – marginalizing the Baka, Bambuti, and Batwa and dispossessing them of their lands and resources (Musafiri, Reference Musafiri2009). While large parts of the DRC remain under customary governance and ownership (Land Portal, 2020), these systems are often ignored and conflict with the DRC’s asserted sovereignty. There have been three defining periods of land tenure: first, the period of the Congo Free State (CFS) marked by the exploitation of the colony’s resources for the exclusive benefit of King Leopold II (1885–1908); second, the colonial period characterized by the transfer of the CFS to Belgium, as an official Belgian colony (1908–1960); and third, the post-colonial period, marked by the independence of the DRC (1960 to present). All three periods show an uneasy co-existence between statutory law and customary law where customary rights are constantly denied or ignored.

Indigenous Peoples in the DRC Legal Framework

The DRC’s 2006 Constitution affirmed the principle of non-discrimination: that is, all people are equal to other peoples; they have the right to be different, and to be respected in their difference.Footnote ⁸ The DRC endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007, and is state party to various regional and international human rights instruments, including the African Charter on Human and Peoples’ Rights,Footnote ⁹ the Convention on the Elimination of All Forms of Racial Discrimination,Footnote ¹⁰ and the Convention on the Elimination of All Forms of Discrimination Against Women,Footnote ¹¹ among others. Despite these commitments, Indigenous Peoples continue to face discrimination, and are subject to extreme economic, social, cultural, and political inequality. Indeed, while there has been intense activity at the international level to ratify these human rights instruments, the Congolese government has done little to implement them in practice, and until the most recent Indigenous Peoples’ protection laws, were referred to as “local communities.”Footnote ¹²

The 1973 Land Law, and the national land use planning framework, did not recognize Indigenous Peoples and their customary rights. The 2002 Forest CodeFootnote ¹³ provided a definition of “local communities” referred to as “a population traditionally organized on the basis of custom and united by bonds of clan or parental solidarity that form the basis of its internal cohesion. It is also characterized by its attachment to a specific terroir.”Footnote ¹⁴ The Congolese legislature has expressed a certain suspicion towards the rights of minorities or vulnerable groups, similar to some of the debate and misconceptions around the concept of “Indigenous” in the African context more generally (ACHPR and IWGIA, 2006). The most common reasons to justify this mistrust are, among others, the principle of the indivisibility of the state and the promotion of national unity.

The term “Indigenous Peoples” is used to draw attention to and alleviate the particular form of discrimination these peoples suffer in the DRC. The chief concern of Indigenous Peoples in the DRC is not just to simply claim first inhabitant status – but for the recognition of their basic human rights, and rights of access to land and natural resources (ACHPR and IWGIA, 2006), and in turn, to seek protection in international human rights law and moral standards.

The UN Human Rights Committee’s concluding observations on the DRC expressed concerns about the generally precarious situation and vulnerability of Indigenous populations:

The Committee expressly recommended that “legislation recognising the rights of the Indigenous Peoples be put in place as soon as possible.” In recent years, the DRC has reviewed its position on “Indigenous Peoples,” which is now accepted and endorsed by the government, and adopted in law as well as in climate change-related programs.Footnote ¹⁵

Land Rights: A Legal Vacuum

The 1973 Land Law provided access to land for all individuals and legal entities, whether Congolese or foreign nationals. However, it left open the question of securing the customary land rights of local communities, providing that this would be resolved at a later date by presidential decree (Koné, Reference Koné2017). According to Article 389 of the Land Law, “the rights of use of these lands, duly acquired, shall be regulated by decree of the President of the Republic.” Although the Land Law considered this issue of customary rights in 1980, the presidential ordinance was never drafted, leaving customary land rights holders in a legal position akin to rights of occupation only (Mpoyi, Reference Mpoyi2013), an oversight that has never been addressed by various governments since then (Battory & Vircoulon, Reference Battory and Vircoulon2020). This situation creates tenure insecurity for customary rights holders who depend on the forest for their livelihoods (Koné, Reference Koné2017).

This “tenure” vacuum has maintained dispossession, leaving the door open to forcible land grabs, illegal occupations and coerced sales, and fueling various types of land disputes, including between the Indigenous Peoples and local Bantu communities. This is evidenced by the case of the Batwa people evicted from their ancestral lands in the Kahuzi-Biega National Park in 1975 without their consent. They were dispossessed by a conservation approach that assumed that communities and the preservation of biodiversity are incompatible. Following the eviction, the DRC state failed to protect the Batwa from entrenched discrimination, and to provide alternative lands or access to basic public services. There has never been formal acknowledgement of the injustice of this dispossession, of their forced expulsion, or any compensation and reparations. They continue to live landless and in poverty and are frequently criminalized for their subsistence activities. As part of a review of the status of Indigenous Peoples in Africa, the African Commission on Human and Peoples Rights (ACHPR), which reviewed the situation of the Batwa in and around Kahuzi-Biega in 2003, highlighted the consequences of the evictions of the Batwa:

The Batwa of the Kahuzi-Biega National Park, with legal support provided by Minority Rights Group and Environment Natural Resources and Development, lodged a case for land restitution before the ACHPR in November 2015. The admissibility decision was received as a beacon of hope by Indigenous Peoples and their support organizations (MRG, 2019). By declaring the communication admissible within the meaning of Article 56 of the African Charter on Human and Peoples’ Rights, the Commission found that the domestic remedies provided by the DRC authorities were not sufficiently available, effective or efficient to ensure adequate redress for the violations suffered by the complainants (MRG, 2019). The decision is a big step towards the recognition and protection of the Batwa’s rights, who were evicted from their lands without compensation or restitution (MRG, 2019).

Collective Rights, Individual Titles and State Sovereignty

The constitution recognizes customary land tenure and guarantees rights to individual and collective title acquired in accordance with law or custom. Some estimates suggest that as much as 97 percent of land across the DRC is governed under customary law (USAID, 2010). At the same time, the constitution asserts state sovereignty over land and forests – which is problematic for Indigenous Peoples.Footnote ¹⁶ In addition, according to the Land Law, the state is the sole owner of the lands occupied by local and Indigenous communities.Footnote ¹⁷ The Land Law stipulates that “the right of utilization of a land is legally established only through a registration certificate of the deed assigned by the State,”Footnote ¹⁸ meaning that customary land rights are not clearly affirmed and recognized as a property right in practice. Only those customary rights converted into land titles are recognized, with the certificate of registration acting as an enforceable legal document to which probative value is asserted.Footnote ¹⁹

The process for obtaining a registration certificate is relatively long and costly, meaning very few Indigenous communities have taken advantage of it. There are administrative barriers for communities exercising legal capacity in the country because the legal system presumes such rights can only be exercised by individuals; what this means is that many Indigenous communities are prevented from collectively managing property (Smith & Stein, Reference Smith and Stein2020). If communities can enjoy legal personality, they are denied legal capacity under the current legal framework. The distinction between legal personality and legal capacity is merely an administrative device that enables the state to regulate who may exercise their rights, and to what extent, and through what modality they may do so. In practice, the distinction recognizes and at times facilitates the exercise of rights by some groups, while at times calcifying and legitimizing paternalistic attitudes about other groups (Powell & Stein, Reference Powell and Stein2016).

In the case of Kakese Shumbusho Marcel v. Migambi Munyandatwa et al.,Footnote ²⁰ the Tribunal de Grande Instance (High Court) of Goma was asked to settle a land dispute between Mr. Kakese, the applicant, and five members of the Bambuti Indigenous community in Masisi territory, in North Kivu. The applicant was asking the High Court to confirm his ownership rights to a concession of approximately 100 hectares, legally acquired under a certificate of registration.Footnote ²¹ On the other side, the defendants claimed customary ownership of their ancestral lands, based on customary occupation.Footnote ²²

The High Court of Goma was emphatic in its judgement, writing that:

As we can see, the court’s intervention in land disputes does not consider the existing legal and institutional dualism provided for in the constitution; rather the court’s perspective affirms that customarily held land rights are not equal in weight and validity to administratively granted land rights. The provisions of the constitution, the Land Law, and the recent Law on Indigenous Peoples (which took effect in 2022) must be used for implementing and enforcing customary land rights, otherwise Indigenous Peoples in the DRC will continue to face issues with tenure insecurity.

International Agreements and Article 215 of the Constitution

As a civil law country, the DRC’s legal framework for recognizing Indigenous land rights relies on various formal sources, including international treaties (Zongwe et al., Reference Zongwe, Butedi and Mavungu2020). The DRC is a monist state, and as such international treaties are expected to become an integral part of national law upon ratification. According to Article 215 of the Constitution,Footnote ²⁶ ratified treaties and international agreements prevail over Congolese legislation. However, the rigid distinction between monist and dualistFootnote ²⁷ states is not played out in practice. There are some instances where the application of Article 215 is limited in practice, for example, when the Constitutional Court declares that an international treaty or agreement contains a clause contrary to the constitution, and as a result, subjects its application to the review of the constitution.Footnote ²⁸ In addition, Article 214 binds the operation of Article 215 by requiring the domestication of specific types of international treaties. The DRC ratified the African Charter on Human and Peoples’ Rights guaranteeing individuals their property rights, which applies as well to Indigenous Peoples.Footnote ²⁹ In theory, then, the provisions of the African Charter form an integral part of Congolese law, and should therefore be “directly enforceable” in Congolese courts. If there is a conflict, international law prevails over ordinary law.

Also, the rights of Indigenous Peoples have been specifically addressed in the UNDRIP endorsed by the DRC in 2007. The UNDRIP protects Indigenous Peoples against discrimination,Footnote ³⁰ and recognizes their rights to self-determination,Footnote ³¹ culture,Footnote ³² land,Footnote ³³ spirituality or religion,Footnote ³⁴ and health.Footnote ³⁵ The UNDRIP also acknowledges the collective nature of Indigenous rights. Although the UNDRIP is not legally binding, some of its provisions may reflect customary international law. In any case, it is an important step towards setting standards for recognizing and protecting the rights of Indigenous Peoples in the DRC. However, the application of international law in domestic cases is rare and the courts continue to give precedence to registration certificates over communities’ customary rights in land-related conflicts.Footnote ³⁶

The Law on the Rights of Indigenous Peoples

The Law on the Rights of Indigenous PeoplesFootnote ³⁷ was adopted by Parliament in April 2021, and became law in 2022. This new law – the outcome of a huge effort by Indigenous Peoples and civil society organizations – aimed to recognize and safeguard the customary and communal land rights of the Baka, Bambuti, and Batwa peoples, and “fill the legislative void in terms of the protection of the rights of Indigenous Peoples.” The law makes direct reference to obligations under a series of international and regional human rights instruments in its Exposé des motifs (Thornberry, Reference Thornberry2023).

Under this law, notwithstanding the state’s property rights over the soil and subsoil, Indigenous Peoples have the right to the lands and natural resources that they own, occupy or use, in accordance with the applicable law; and no relocation or resettlement can take place without free, prior, and informed consent (FPIC).Footnote ³⁸ Indigenous Peoples also have the right to the full enjoyment of all natural resources, both timber and non-timber, and the benefits of environmental services on the lands they traditionally own, occupy or use.Footnote ³⁹ In addition, Indigenous Peoples may give or withhold consent to any project that may affect lands and natural resources they traditionally own, occupy or use.Footnote ⁴⁰

While the law has provisions on FPIC relating specifically to displacement, more general FPIC provisions were watered down in the final text. Whereas a previous draft of the text foresaw prior consultation with a view to obtaining consent “for any project affecting the life of indigenous Pygmy peoples directly or indirectly,” as well as “appropriate mechanisms for consultation which take account of their customs, before any elaboration or implementation of administrative or legislative measures,” these provisions have been removed and replaced (Thornberry, Reference Thornberry2023).

An Alternative Pathway to Strengthen Customary Land Tenure

Given that the Law on the Rights of Indigenous Peoples has not taken effect at the time of writing, and the fact that few Indigenous Peoples have formal title to their lands in the DRC, most legal efforts to advance land rights have focused on individual land ownership through land titling and registration. Disappointment with such approaches led to a search for an alternative pathway in land tenure regulation that reconciles customary land rights with those asserted by the state (Ubink, Reference Ubink, Ubink, Hoekema and Assies2009). This pathway is the through the Community Forest Concessions (Concessions Forestières des Communautés Locales or CFCLs).Footnote ⁴¹ The 2002 Forest Code sets the legal framework for Indigenous Peoples to manage forests they traditionally occupy, even though they are not the “legal” owners according to state laws.

According to the Decree on CFCLs,Footnote ⁴² Indigenous Peoples (and local communities) can transform part of or all their customarily occupied forests into a community-controlled and managed concession – the CFCLs. It is, to date, the only legal option for many Indigenous communities to secure some form of recognized collective property rights to their forests – and to protect their lands against encroachment.

A local community’s forest concession is granted to a community by the state, based on customary ownership, to manage it according to their customary laws and traditions, provided the uses are not contrary to existing laws and regulations, and subject to the obligation of applying the rules and practices of sustainable forest management.Footnote ⁴³ Communities with CFCLs can engage in conservation or forestry or any other form of activity. These concessions are allocated upon request by the community, free of charge and in perpetuity.Footnote ⁴⁴ The first threshold for establishing customary rights is customary occupation. Participatory mapping and land demarcation exercises can provide physical evidence of customary occupation. To date, more than 150 community forests covering three million hectares have already been established, with potentially tens of millions more available to local communities (RFUK, 2023).

The Batwa communities of Tshiefu, in Central Kasaï, hold a land title to their lands dating from the colonial era. They have been supported by the Dynamique des Groupes des Peuples Autochtones (DGPA) and Forest Peoples Programme (FPP) in formalizing this title, and they have also obtained recognized property rights through community forests. Four Batwa communities from Micha, Bondo, Kombe, and Tongonuena have secured 111,760 hectares of community forests in total.Footnote ⁴⁵ The request was made separately because an Indigenous community can only request up to 50,000 hectares in a CFCL.Footnote ⁴⁶ Now, with CFCLs, the Batwa of Tshiefu are supposed to be less vulnerable to land grabbing with greater legal standing, and can play a stronger role in forest management. However, community forest “titles” are effectively concessions and not titles of land ownership. While the CFCL can provide some protection against logging and mining exploitation, the level of protection is not as strong as it would be if the communities owned the land (Koné, Reference Koné2023).

In support of their CFCLs, the Batwa have produced maps documenting their customary territory, which are being used for drafting subsequent forest management plans, with the goal of protecting their values and livelihoods. It is important to note that, to date, most of the CFCLs obtained in the DRC belong to Bantu peoples, sometimes to mixed communities (Bantu and Indigenous communities), and only occasionally to Indigenous Peoples – strengthening Indigenous engagement in CFCLs is critical moving forward. Because of the persistence of traditional discrimination and the perception of the subordinate status of Indigenous Peoples, there is a risk that the Bantu will give them a smaller share of the distributed collective resources, especially money (Moise, Reference Moise2019).

Community forestry faces major challenges, including weak community ownership and capacity, and there is ongoing debate over communities’ choices of socio-economic model. For example, should this model be conservation- or market-focused? CFCLs do focus on poverty reduction rather than tenure security, which can lead to forest degradation, and thus undermine the subsistence economy (Moise, Reference Moise2019). CFCLs are governed by the local management committee (Comité de Gestion – CdG), a highly formalized structure with a president, vice-president, treasurer, etc. (Moise, Reference Moise2019). To operate an enterprise, the community must form a cooperative society or a local development committee.Footnote ⁴⁷ Traditional governance is typically ignored. Most communities have partnerships with outside corporations, which can open the door to corruption and elite capture (Kipalu et al., Reference Kipalu, Koné, Bouchra, Vig and Loyombo2016). Some Congolese NGOs have reported a proliferation of CFCL applications facilitated by foreign NGOs, where the local communities have not been properly informed or consulted and are not fully engaged in the process.

A National Roundtable on Community Forestry was initiated in 2015 to address the risks outlined above, bringing together different stakeholders to develop a common national strategy for CFCLs through consensus. The National Roundtable also serves as a forum for sharing lessons from pilot projects across the DRC, in terms of best practices and in order to identify obstacles to the national CFCLs process (RFUK, 2018).

Conclusion

Apart from CFCLs, there are few examples where Indigenous Peoples in the DRC are successfully reclaiming their land back or registering title. However, the latest Law on the Rights of Indigenous Peoples may remedy this. While the state retains exclusive ownership of land and subsoil resources, these rights are mitigated to some extent by the specific new provisions of this law that aims to give legal recognition and protection to lands and resources traditionally occupied by Indigenous Peoples.

The country’s legal dualism, which affirms customary and state ownership, does not reconcile these, and puts barriers in place to the recognition of customary ownership – for example by requiring cumbersome land title certificates to prove ownership. This means that most Indigenous communities endure tenure insecurity and vulnerability. The CFCLs have been the primary strategy for Indigenous Peoples to secure some form of access and use right to their lands, but are not an end in itself.

For the CFCLs strategy to be effective, Indigenous communities need to be aware, empowered, and possess the capabilities (legal and administrative) to make a request for the CFCLs, which frequently they are not. The CFCLs may offer some form of standing against encroachment of traditional lands; however, they are not focused entirely on commercial forest resources (and thus cannot generate the revenues for communities to pursue land reclamation strategies), and they do not offer security from elite capture or dispossession by more powerful actors. Therefore, CFCLs should not be considered as the end or a miracle solution, but one step on the road to genuine Indigenous land justice in the DRC.

CFCLs should build on existing and traditional forms of organization and governance in Indigenous communities, rather than imposing bureaucratic structures. This approach may create space for genuine participation in CFCL management and decision-making, and could support an equitable sharing of benefits arising from the exploitation of CFCL resources.

Looking forward, how the new Law on the Rights of Indigenous Peoples plays out in practice remains unknown. However, what we understand from previous experience is that a genuine dualism in the country, one that both recognizes and safeguards Indigenous land rights, has proven elusive. Strengthening the land rights of Indigenous Peoples through a meaningful recognition and protection of these rights requires, as a first step, a more supportive and simplified land titling process. This means building an institutional and regulatory framework that can implement and safeguard customary title and ownership, with a space for Indigenous voices in this framework.

Introduction

As Africa’s oldest multiparty democracy, the Republic of Botswana in southern Africa has long been viewed as a country with a superb human rights record (Samatar, Reference Samatar1999). However, in the past four decades, the actions of the Botswana Government involving the country’s Indigenous minorities has called into question this reputation (Barume, Reference Barume2014; Ndahinda, Reference Ndahinda2011; Nyati-Ramahobo, Reference Nyati-Ramahobo2009; Saugestad, Reference Saugestad2001). Botswana has a complex history when it comes to the recognition of Indigenous Peoples, San and Bakgalagadi, and their rights to their ancestral territories.

At the time of Botswana’s independence on September 30, 1966, there was only one place in the country where San (Bushmen) and Bakgalagadi had constitutionally recognized land rights: the Central Kalahari Game Reserve (CKGR). In 1997 and 2002, however, the residents of the Central Kalahari were involuntarily relocated to areas outside of the CKGR by the Botswana Government. Some of the former residents were only able to return to the Central Kalahari after a two-and-a-half-year-long legal battle in the country’s High Court, the longest and most expensive litigation case in the nation’s history (Ng’ong’ola, Reference Ng’ong’ola2007; Sapignoli, Reference Sapignoli2017; Zips-Mairitsch, Reference Zips-Mairitsch2013). Some analysts have seen the situation in Botswana as an example of the “judicialization of African politics” (Brett, Reference Brett2018; Sapignoli, Reference Sapignoli2018).

As a landlocked country, Botswana is 581,730 square kilometers in size, roughly the size of Kenya. It is culturally diverse, supporting some thirty-six different ethnic groups. Botswana endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in September 2007. However, the country raised objections to an earlier draft of the Declaration at a meeting in late 2006 of the Third Committee of the United Nations General Assembly in New York, and at a meeting of the Assembly of Heads of State and Government of the African Union in January 2007 (see African Group of States, 2006; African Commission on Human and Peoples’ Rights, 2007). The concerns raised by Botswana, Namibia, and the other African states included the following: (1) the definition of Indigenous Peoples, (2) the issue of self-determination, (3) the issue of land ownership and the exploitation of resources, (4) the establishment of distinct political and economic institutions, and (5) the issue of national and territorial integrity (African Group of States, 2006; Barume, Reference Barume, Charters and Stavenhagen2009). These concerns became a major topic of discussion in Botswana, and after endorsing the UNDRIP, efforts were made by various non-government organizations (NGOs) and the United Nations to distribute copies of the UNDRIP to people in both urban and rural communities. While Botswana endorsed the UNDRIP in September 2007, it has not been ratified in the Botswana Parliament. However, the UNDRIP has been used by San advocacy groups at the community level to familiarize them with human rights principles, including land rights.

While Botswana does not recognize its 60,000-plus San peoples as “Indigenous,” holding instead that all citizens of the country are Indigenous, it does have a Remote Area Development Program with the target population being all those people living in remote parts of the country, which includes San peoples (Republic of Botswana, 2009). It also has an “Affirmative Action Framework” aimed at assisting people in what are known as “remote area communities,” of which there are seventy-three at present (Ludick, Reference Ludick2018; Republic of Botswana, 2014) (see Figure 10.1). The problem for San in these settlements, however, is that people there do not have officially recognized land tenure rights. The remote area settlements are open to anyone who wants to come and live there.

Figure 10.1 Remote area communities in Botswana

Figure 10.1Long description

The map of Botswana marks remote area settlements like Tsodilo, Xae Xae, Dobe, Qwangwa, and Grootlaagte in the northwest. Regions like Chobe national park, and Nxai Pan national park are in the northeast, the Central Kalahari game reserve is in central Botswana with the Khutse game reserve just south of it, and the Kgalagadi Gemsbok transfrontier park is in the southwest. The central Kalahari game reserve is the region with constitutionally recognised land rights, and is larger compared to the other reserves. The neighboring countries, like Namibia to the west, Angola, Zambia to the north, Zimbabwe to the east, and South Africa to the south, are also indicated.

Historically, San have faced dispossession as a result of several processes: (1) pre-colonial incursions of other groups, most of them agropastoralists over the past 2,000 years, who incorporated San into their social and economic systems, and denied them land rights; (2) the granting of land by the colonial administration to people of European backgrounds in the form of freehold ranches and farms; (3) the introduction of land reform programs in the post-colonial period (1966–present); and (4) the taking of land for mines, roads, trek routes, and protected areas.

This chapter considers two questions: (1) What are the mechanisms for recognizing Indigenous Peoples’ land rights in Botswana? (2) How have these mechanisms and rights performed in practice? The balance of this chapter examines the ways in which the Government of Botswana has dealt with the land rights of San peoples, and then assesses the strategies employed by San and their supporters to get their land rights recognized.

A Brief History of San Dispossession

San and their ancestors resided in the Kalahari Desert region of Botswana for thousands of years. San moved about the landscape from one resource patch to another, depending on resource type and density, numbers of people in each group, and season (Barnard, Reference Barnard1992; Silberbauer, Reference Silberbauer1981; Tanaka, Reference Tanaka1980). Virtually all San groups claimed rights to their territories, or areas they recognized as belonging to them, and had de facto rights of long-term occupancy and use (Barnard, Reference Barnard1992; Silberbauer, Reference Silberbauer1981; Tanaka, Reference Tanaka2014). San territorial units are known as a nong (Naro), gu (G/ui), g!u (G//ana), n//olli (!Xõó), and a n!ore (ǂX’ao-||’aen).

San were pressed into service as herders and field hands when agropastoralists moved into the Kalahari some 2,000 years ago. They had to seek permission from traditional authorities of other groups if they wanted land for residential, agricultural, or other purposes (Hitchcock, Reference Hitchcock1980; Schapera, Reference Schapera1938, Reference Schapera1943). As Schapera (Reference Schapera1953, p. 37) pointed out:

Over time, the servile status of San and Bakgalagadi was transformed, with stipulations by Tswana chiefs and by the Bechuanaland Protectorate authorities who declared slavery illegal in the 1930s (Datta & Murray, Reference Datta, Murray, Holm and Molutsi1989; Schapera, Reference Schapera1970).

The Constitutional Republic

At Independence on September 30, 1966, Botswana’s new constitution addressed the land and resource rights of the country’s citizens (Republic of Botswana, 1966). The introduction of a Tribal Land Act (1968), which took effect in 1970, removed power for land away from the chiefs and gave it to district land boards (Republic of Botswana, 1968). The introduction of a land reform program, the Tribal Grazing Land Policy (TGLP) in 1975, guaranteed that every Motswana (citizen) had the right to enough land to meet their needs (Republic of Botswana, 1975).

Today, Botswana is made up of three kinds of land: freehold (private), state land, and communal (tribal land). The rough breakdown is 5.7 percent freehold, 17.4 percent state land (including parks and reserves and national monuments), and 29.8 percent (or 173,432 km²) communal (see Table 10.1). The tenure in tribal (communal) areas became alienable over time after the introduction of the Tribal Land Act, which went into effect in 1970. This alienability makes the Botswana case distinct from many other jurisdictions around the world (see the chapters from Australia and Canada for example).

Table 10.1Land zoning categories in Botswana

Data obtained from the Ministry of Lands and Housing, the Ministry of Local Government and Rural Development and the Ministry of Environment, Wildlife and Tourism, Government of Botswana. The category “other” includes land in towns and land set aside for government purposes, such as trek routes and quarantine camps for livestock.

Table 10.1Long description

The table gives land zoning data for Botswana in 4 columns namely, the type of land, land zoning category, amount of land, and the percentage share of the country from left to right in order. The land distribution in the country totals to 581,720 square kilometers. Tribal land is the largest. The row-wise details for 4 types of land, namely, freehold land, state land, and tribal land are as follows.

• For freehold farms under freehold land, the corresponding values are 32,970 square kilometers, and 5.7%.

• For parks and reserves under State land, the corresponding values are 101,535 square kilometers, and 17.4%.

• For other State lands, the corresponding values are 32,455 square kilometers, and 5.6%.

• For communal tribal land, the corresponding values are 173,432 square kilometers, and 29.8%.

• For commercial tribal land, the corresponding values are 51,094 square kilometers, and 8.8%.

• For wildlife management areas under the tribal land, the corresponding values are 129,450 square kilometers, and 22.2%.

• For leasehold ranches under the tribal land, the corresponding values are 3,351 square kilometers, and 0.6%.

• For Remote area Dweller settlements under the tribal land, the corresponding values are 3,523 square kilometers, and 0.6%.

• For other tribal land, the corresponding values are 53,910 square kilometers, and 9.3%.

• The total land area is 581,720 square kilometers totalling to 100% share of the country.

The majority of San peoples reside in communal areas. The land use planning process introduced by the TGLP resulted in District Councils and Land Boards dividing tribal land up into subcategories, including commercial leasehold ranching zones, reserve areas (set aside for the future), and communal lands (Table 10.1). As it worked out, the commercial leasehold ranching zones became the primary focus of the District Councils and Land Boards, and what was then the Ministry of Local Government and Lands (Peters, Reference Peters1994; Hitchcock & Sapignoli, Reference Hitchcock, Sapignoli, Fleming and Manning2019; Wily, Reference Wily1979, Reference Wily1981). Subsequent land use zoning efforts resulted in the setting aside of Wildlife Management Areas (WMAs), multiple-use zones in which wildlife-related land uses were supposed to receive priority (Republic of Botswana, 1986). Over time, the land boards allocated water points for domestic animals not only in the communal and leasehold areas, but also in the WMAs, which shifted land use toward livestock production (Adams et al., Reference Adams, Kalabamu and White2003; Cullis & Watson, Reference Cullis and Watson2005; Keeping et al., Reference Keeping, Kashe, Langwane, Sebati, Molese, Gielen, Keitsile-Barungwi, Xhukwe and Nate2019). In addition, community members in the settlements in WMAs engaged in small-scale livestock production and initiated gardening and tourism projects, which transformed local landscapes (Cadger & Keep, Reference Cadger and Keep2013; Hitchcock, Reference Hitchcock2021).

A Community-Based Natural Resource Program was introduced in 1990 (Republic of Botswana, 1990), which gave communities rights over wildlife if they formed community trusts – management bodies that had a constitution, land use plan, and formal structure (Rihoy & Maguranyanga, Reference Rihoy, Maguranyanga and Nelson2010). The communities had the option of leasing out rights to wildlife to private companies or keeping the wildlife quota for themselves and engaging in subsistence and tourism. By 2014, there were over 180 community trusts in the ten districts of the country. It is important to note that the community trusts had rights over wildlife but no rights to wild plant resources, grazing, or water in these areas. They also did not have de jure land rights or sub-surface rights.

Community trusts had management councils that were similar to traditional San community leadership systems. The difference is that officers in community trusts were elected by community members, while San leaders usually arose from within local bands based on their personal qualities, knowledge of San customs, even-handedness in dealing with others, and awareness of the natural resources and important places in their areas.

A countrywide hunting ban declared by the Botswana Government (Republic of Botswana, 2014) led to a shift from community management to private company management in the community trust areas. Many of the communities that had community trusts in 2014 found that wildlife rights and benefits from tourism were done away with. In community trusts in the North West District, for example, tourism benefits flowed to private safari tourism companies (Joseph Mbaiwa, personal communication, 2019; Mbaiwa, Reference Mbaiwa2017, Reference Mbaiwa2018). The rights to tourism and to hunting became a key focal point of debate in the lead-up to the 2019 elections. With the election of Mokgweetsi Masisi, moves were made toward opening up hunting, particularly to foreign safari hunters. No guarantees were provided by the new government for subsistence hunting rights for citizens dependent on wild fauna and flora.

The introduction of a new national land policy in Botswana in 2015 (Republic of Botswana, 2015) led to a trend toward privatization of tribal lands and a land rush into communal and wildlife management areas (Isaacs & Manatsha, Reference Isaacs and Manatsha2016). The only places that did not experience this land rush were protected areas such as the Kgalagadi Transfrontier Park and Chobe National Park, and lands that were already in the hands of people with leasehold rights. The Central Kalahari Game Reserve was the only area set aside purposely for San in 1961, in this case to protect the modus vivendi of the people residing there, and at the same time conserve flora and fauna (Silberbauer, Reference Silberbauer2012).

Efforts to Secure Land Rights for San

Many of the efforts to secure land rights for San consisted of setting up settlements in which San could reside and pursue their livelihoods, particularly in the 1930s, such as the case of Olifants Kloof, in what is now the Ghanzi District, and one in the Letlhakane area of the Ngwato (Central) District (Silberbauer, Reference Silberbauer1981). Faith-based institutions established mission stations aimed at assisting San, as seen, for example, at D’Kar in Ghanzi District in 1973 and Ka/Gae in Ghanzi District in 1975–76. There are only two places where San own their own land in Botswana (i.e., they have de jure [legal] tenure rights). These are D’Kar, a 3,000-hectare community in central Ghanzi District, north of Ghanzi Township, which belongs to a church (originally, the Gereformeerde Church, the Dutch Reformed Church in Namibia); and the Dqae Qare Game Farm in Ghanzi District, a 7,500-hectare freehold farm that is now owned by a Naro San community trust, the D’Kar Trust (Bollig et al., Reference Bollig, Hitchcock, Nduku and Reynders2000).

An important effort to promote San land rights was led by Elizabeth Alden Wily, who persuaded the government to establish a Bushmen Development Program (BDP) in the Ministry of Local Government and Lands in Gaborone in 1973 (see Wily, Reference Wily1979). This program initially supported San, but subsequently expanded to cover all people in remote areas living outside of government-recognized settlements (Gulbrandsen et al., Reference Gulbrandsen, Karlsen and Lexow1986). In the 1970s and 1980s, communal service centers were established in commercial ranching areas, and people from the ranches were moved into them. In those service centers, the residents were provided with water, social infrastructure (schools, health posts), community centers, and meeting places (dikgotla) where community members could meet with government officials and village headmen and headwomen (Hitchcock, Reference Hitchcock1988).

San Land Rights in Ghanzi District

One of the strategies employed by the BDP was to establish a set of resettlement sites for San living in the Ghanzi Farms, or in the town of Ghanzi, and who for all intents and purposes were landless (Wily, Reference Wily1982). The original plan was to establish four resettlement localities in Ghanzi District: East Hanahai, West Hanahai, Rooibrak, and Groot Laagte (see Figure 10.2 for a map of Ghanzi District). East and West Hanahai were made up primarily of Naro San and some G/ui and G//ana. Groot Laagte in the northern part of the district contained primarily Ju/’hoan-speaking ǂX’ao-||’aen. Rooibrak, which did not become a resettlement site because it lacked sufficient water to sustain the population, and would have supported Naro, as well as some G/ui and G//ana.

Figure 10.2 Map of Ghanzi District and CKGR

Figure 10.2Long description

In the map, the Central Kalahari game reserve lies to the east of Ghanzi district. The map marks farms, towns, rivers, roads, and former paths between towns in Ghanzi. The farms include Ghanzi farms in the north, the Xanagas farms in the west, and the Noojane farms in the southwest. The central Kalahari game reserve is shown to the right of the Ghanzi region, which is comparatively larger. Ghanzi, Kuke, Xanagas, Mamuno, and Dongdong are some towns located in the farms. Rivers flow through the Okwa and Buitsavango valleys in the central region. The former paths include one between towns D'kar and Xade in northern Ghanzi and the Kalahari game reserve, respectively, and another between Dongdong and Charles Hill in western Ghanzi.

The implementation of the Ghanzi settlement schemes did not go as smoothly as hoped. As soon as the resettlement sites were designated, people from other groups began to move into them with their livestock. A second problem related to the size of the area to be allocated. While San and their supporters believed that the settlement areas should be large enough to accommodate foraging, residence, arable agriculture, and livestock raising, along with sufficient room for growth of human and livestock populations, the Ghanzi District Council decided to allocate blocks of land 20 by 20 kilometers in size (400 square kilometers) for the settlements (Hitchcock, Reference Hitchcock1988; Wily, Reference Wily1979, Reference Wily1982). These areas turned out to be too small to sustain people through hunting and gathering. In many of the settlements, much of the wildlife and wild plant resources were exploited heavily both by residents of the settlements and outsiders. Agriculture and livestock keeping expanded as wild resources declined, which affected livelihoods in the settlements.

Ghanzi District, it turns out, is an important district to examine for a variety of reasons. First, it is a large district, 117,910 square kilometers, and it lies in the western Kalahari Desert region of Botswana, an area with a high-water table that attracted livestock keepers and settlers (Russell & Russell, Reference Russel and Russell1979). Second, it is the district with the highest percentage of San. Third, Ghanzi contains the most diverse types of land, from freehold farms to leasehold ranches, and from communal land to WMAs (see Table 10.2, see Ghanzi District Development Plan 2009). There are also some subcategories of land, including areas set aside as leasehold (long-term leases for commercial land) and land designated for specialized purposes (e.g., land for trek routes and veterinary camps).

Table 10.2Land zoning categories in Ghanzi District, Botswana

Note: Data obtained from the Ghanzi District Council. The abbreviations used here are as follows: WMA stands for Wildlife Management Area, FDA for First Development Area, SDA for Second Development Area (both TGLP commercial ranch areas), and RAD for Remote Area Dweller.

Table 10.2Long description

The table depicts land zoning categories. It consists of three columns, land category in the first column with subsequent values for area and percentage of district.

• For communal area, mixed farming, grazing, and arable area, the corresponding values are 17,619 square kilometers, and 14.94%.

• For communal area, remote area dwellers settlements, the corresponding values are 2,415 square kilometers, and 2.05%.

• For communal area, Ghanzi township, the corresponding values are 133 square kilometers, and 0.11%.

• For communal area, miscellaneous land, the corresponding values are 973 square kilometers, and 0.83%.

• For freehold and leasehold land, Ghanzi freehold block, the corresponding values are 10,480 square kilometers, and 8.88%.

• For freehold and leasehold land, Xanagas freehold block, the corresponding values are 1,374 square kilometers, and 1.14%.

• For freehold and leasehold Llnd, Ncojane leasehold farms, the corresponding values are 1,664 square kilometers, and 1.41%.

• For freehold and leasehold land, state land extension farms, the corresponding values are 3,784 square kilometers, and 3.2%.

• For freehold and leasehold land, Kuke state land leasehold farms, the corresponding values are 430 square kilometers, and 0.36%.

• For freehold and leasehold land, A I camp, veterinary services, the corresponding values are 15 square kilometers, and 0.001%.

• For commercial areas on tribal land, Makunda F D A ranches, the corresponding values are 444 square kilometers, and 0.37%.

• For commercial areas on tribal land S E Ghanzi S D A ranches, the corresponding values are 924 square kilometers, and 0.78%.

• For wildlife management areas, Groot Laagte W M A, the corresponding values are 3,908 square kilometers, and 3.31%.

• For wildlife management areas, Mallo-a-Phuduhudu W M A, the corresponding values are 8,816 square kilometers, and 7.47%.

• For wildlife management areas, Okwa W M A, the corresponding values are 13,618 square kilometers, and 11.55%.

• For conservation area, central Kalahari game reserve, the corresponding values are 52,313 square kilometers, and 44.36%.

• For total, the corresponding values are 117,910 square kilometers, and 100%.

A sizable proportion of the Ghanzi district consists of a single protected area, the Central Kalahari Game Reserve. The Central Kalahari is considered state land, and it is overseen by both the Ghanzi District Council and the central government which determines policy in the area. When the game reserve was first declared, European farmers in the Ghanzi Farms opposed the idea, because they feared the reserve would serve as a locale for people to escape farm work and potentially serve as a base for people engaged in livestock theft (personal communication, 1978; Silberbauer, Reference Silberbauer1981). At the time of its declaration, there were 3,000 to 5,000 people who had some form of rights in the CKGR. In the 1980s, however, the Government of Botswana established a commission of inquiry into the status of the CKGR, in part as a response to concerns expressed by ecologists and others that the wildlife and habitats in the reserve were being affected by the presence of large numbers of people who had moved to one of the communities in the reserve, !Xade (Government of Botswana, 1985). The government rejected many of the conclusions of the Central Kalahari Commission, recommending instead that reserve residents be relocated to other places. Several reasons were given for this decision: first, the government wanted to promote wildlife conservation in the reserve; second, the government felt that wildlife-related tourism was an important way to have the state benefit from the resources in the reserve; and third, it was argued that people inside the reserve were no longer living as hunter-gatherers, but instead were keeping livestock and engaging in other “non-traditional” activities inconsistent with wildlife conservation (Ministry of Commerce and Industry, 1986).

The Botswana Government began encouraging people to resettle outside of the reserve by utilizing a number of techniques, some of them coercive. Arrest rates for illegal hunting increased substantially, and people suspected of poaching were sometimes beaten and tortured (Mogwe, Reference Mogwe1992). Food and water deliveries under the government’s Remote Area Development Program slowed, and for some communities in the reserve stopped altogether. In some cases, individuals’ livestock were confiscated. Eventually, two major relocations of reserve residents occurred, one in May–June 1997, where some 1,760 residents were moved from !Xade in the reserve to New Xade outside the western boundaries of the CKGR.

A second set of relocations took place in January–February 2002, when some 2,000 people were loaded on trucks and moved out of the reserve to three resettlement sites: New Xade, Kaudwane in Kweneng District, and Xere in Central District (Sapignoli, Reference Sapignoli2017, Reference Sapignoli2018; Zips-Mairitsch, Reference Zips-Mairitsch2013). At first San and Bakgalagadi in the reserve attempted to negotiate, but these negotiations did not change the government’s mind about the relocations. Then people from the reserve engaged in demonstrations against the government’s decisions. San formed their own non-government organizations aimed at promoting their rights. People from the central Kalahari and support organizations, notably the First People of the Kalahari which had been founded in 1993, engaged in lobbying efforts at the international level to highlight this injustice, traveling to New York, Geneva, and London, among other places. When these efforts failed, the people of the CKGR opted to go to court, filing a legal claim against the government (High Court of Botswana, Affidavit, 2002). While at first the High Court rejected the legal case on the basis of technicalities, eventually the Central Kalahari case was heard in the High Court over the period from July 2004 to December 2006 (see Sapignoli, Reference Sapignoli2018 for a detailed description of this legal case). A third small-scale removal of people from the Central Kalahari Game Reserve occurred in 2005 (Sapignoli, Reference Sapignoli2018).

In December 2006, three High Court judges ruled largely for the applicants, arguing that they (1) had the right to return to the Central Kalahari, and (2) had the right to hunt for subsistence in the reserve (High Court of Botswana, Affidavit, 2006). The day after the judgment was issued, however, the Attorney General of Botswana stated the government was under no obligation to offer services in the reserve, including food and water provision (Molokomme, Reference Molokomme2006). The people of the Central Kalahari went back to court in 2009, seeking a right to water in the Court of Appeal, the country’s highest court. The people of the Central Kalahari won this case, setting an international precedent for Indigenous and other peoples’ right to water (Court of Appeal, Botswana, 2011; Morinville & Rodina, Reference Morinville and Rodina2013; Sapignoli, Reference Sapignoli2018).

From our field work in January 2022, we documented some 350 people in five communities inside the CKGR, earning their livelihoods through gathering wild plant foods, delivering government food, growing crops in small gardens, and maintaining small-livestock (goats and sheep) and poultry production. People in the reserve are still not allowed to hunt, which is unlikely to change despite a promise by the Botswana Government in May 2019. It is important to note here that Botswana is the only country in Africa to have had a nation-wide subsistence hunting law, which lasted from 1979 to 2004. The regulations were specified in the Unified Hunting Regulations of 1979 (Hitchcock et al., Reference Hitchcock and Sapignoli2012; Republic of Botswana, 1979). It should be pointed out, however, that dozens of people were arrested by wildlife officers and police despite their possession of subsistence hunting licenses in the period from 1970 to 2004, calling into question the effectiveness of the licensing system. One of the complaints about this hunting system in late 2021 related to communities’ dissatisfaction with how private safari companies were getting allocations of animals to hunt, but communities were not allowed to benefit from the hunting license allocation.

Barriers and Opportunities for San Land Rights

The government is the biggest obstacle for San land rights in Botswana. The government has steadfastly refused to negotiate San land rights. It has not honored requests by San organizations, the Commissioner for Indigenous and Human Rights, the Human Rights Council, and various international Indigenous rights NGOs to change its land rights policies.

In the 1990s, and the first decade and a half of the twenty-first century, a number of communities in Ghanzi District formed community trusts under the government’s Community-Based Natural Resource Management Program (Republic of Botswana, 1990). San communities were able to get rights to resources through these trusts. This strategy worked until 2014, when the Government of Botswana imposed a hunting ban. Since that ban, the trusts have largely lost control of their areas to private safari companies. Table 10.3 presents data on these community trusts, which engaged in a variety of projects ranging from tourism to wild animal sales and to craft production. It is currently unclear what the status and rights of the community trusts are.

Table 10.3Community trusts in Ghanzi District, Botswana, that are or were involved in community-based natural resource management activities

Note: Data obtained from the Ghanzi District Council, the Kuru Family of Organizations, and the IUCN (World Conservation Union) CBNRM Support Program (www.cbnrm.bw and www.iucnbot.bw).

Table 10.3Long description

The table lists data for the community conservation trusts in Botswana in 4 columns, namely, their founding dates, controlled hunting area with support organization, number of villages involved with their population sizes, and project activities from left to right in order. Trusts manage wildlife areas up to 13,618 square kilometers, and serve villages of 200 to 1,800 people. The row-wise details are as follows.

• For Aushuxalu conservation trust founded in 2006, the corresponding data are Okwa W M A covering 13618 square kilometers, one village Bere with 800 people, and activities including community tourism, crafts, tracking activities, and bush products.

• For Huiku community-based conservation trust founded in 1999, the corresponding data are Groot Laagte W M A covering 3908 square kilometers, two villages, Groot Laagte and Qabo with 1013 people, and activities including community tourism, lodge operation, crafts, and bush products.

• For D’Kar Kuru trust founded in 1999, the corresponding data are the Dgae Qare freehold farm covering 7500 hectares, one village D’ Kar with 943 people, and activities including community tourism, crafts, and lodge operation at Dgae Qare.

• For Kgoesakani management trust founded in 2000, the corresponding data are G H 10 area covering 1248 square kilometers, managed by the Government of Botswana, and activities including community tourism and crafts related to the Central Kalahari Game Reserve.

• For Xwiskurusa community trust founded in 1996, the corresponding data are G H 10 area covering 1248 square kilometers, three villages, East Hanahai, West Hanahai and Ka or Gae with 1247 people, and activities including community tourism, crafts, and bush products.

• For Chobokwane community trust founded in 1999, the corresponding data are G H 11 Matho-a-Phuduhudu W M A covering 8816 square kilometers, one village, Chobokwane with 489 people, and activities including community campsites, crafts, and bush products.

• For Komku development trust founded in 1999, the corresponding data are G H 11 area covering 8816 square kilometers, one village, Buitsavango with 200 people, and activities including community campsites, crafts, and dances.

Another way that San who were dispossessed of their lands sought to get at least some land and resource rights was to form alliances with mining companies, some of whom, such as DeBeers Botswana and Gem Diamonds, argued on behalf of San with the government. It is estimated that at least 300 San were dispossessed by the establishment of the DeBeers Orapa diamond mine in 1967. In the case of the diamond mines around Letlhakane in Central District, another 500–1,000 San were dispossessed (Keikabile Mogodu, personal communication, August 2022). Compensation in the form of alternative land or cash was not provided to those people who were required to leave their residential, arable, and grazing lands (Botswana Khwedom Council, personal communication, 2022).

More recently, mining corporations have exercised a certain degree of social responsibility. San communities and individuals required to leave their areas because of mining operations in Ghanzi and North-West Districts have received some cash in exchange for the loss of their land rights. In the case of the new copper-silver mines in northern Ghanzi and southern Ngamiland (North-West District), San were consulted ahead of time and had the opportunity to argue for fair and just compensation for their losses. The problem, however, is that many of the promises of cash and alternative land have yet to be honored by the new mines and their owners.

Conclusion

In 2023, it was uncertain whether the community trusts in the communal areas and Wildlife Management Areas in Botswana still had the right to make their own decisions, and whether people there had resource and land tenure rights. The lack of clarity on the land issue in communal areas is the most crucial problem facing Indigenous and minority communities in Botswana. As Wily (Reference Wily2018) pointed out, Botswana’s protections for the tenure rights of people in communal areas are weak, and as a result “the law is to blame” (Wily, Reference Wily2011). San and other minority communities in Botswana’s communal areas continue to be vulnerable to expropriation, a process seen, for example, among San communities not only in Ghanzi District, but also in Central, Chobe, Kgalagadi, Kgatleng, Kweneng, and North-West Districts. The land tenure status of gazetted remote area settlements is unclear as well. Majority San communities have thus far been unable to obtain de jure land and water rights in the tribal land areas of Botswana.

Another strategy that San employed in an effort to get their land rights recognized was to take part in the political process (for comparison, see the chapter by Baird on Cambodia and Thailand in this book). In 1989, several San from Ghanzi District ran for Parliament (Hitchcock & Holm, Reference Hitchcock and Holm1993). In 1994, only one San was elected to Parliament, Kgosi (Chief) Rebecca Banika, a Shua (//Gorokhwe) San from Chobe District. At the council level, however, a sizable number of San in Ghanzi have run successfully for positions in the Ghanzi District Council. In 2019, there were six San on the Ghanzi Council, one of whom, Hunter Sixpence, was the Ghanzi Council chairperson. Another San, Jumanda Gakelebone, a G//ana from Mothomelo in the Central Kalahari Game Reserve, was the district councillor for New Xade. Mr. Gakelebone was re-elected to the Ghanzi District Council during the recent October 23, 2019, elections in Botswana. He now plans to run for the chairmanship of the Ghanzi District Council. One of the issues he will be pushing for is clarification of the rights of the people of the Central Kalahari Game Reserve.

One of his strategies (and that of other San activists) has been to form alliances with international organizations such as the Forest Peoples Programme, Minority Rights Group International, the International Work Group for Indigenous Affairs, Land is Life, and in the past, Survival International. Some of these organizations have provided funding for the activities of San organizations, and others have provided resources to allow international travel. This strategy has been partially successful, but the drop-off in funds to cover the costs of legal cases continues to be a major challenge.

As it stands now, water and social services such as education and health are provided in most of the seventy-three recognized remote area settlements in Botswana. However, water provisions were stopped in those places where the government wanted people to relocate, such as Ranyane in western Ghanzi District and in the Central Kalahari Game Reserve. As discussed, these decisions were successfully challenged in the High Court. But as yet the government and district councils have failed to implement these High Court judgments.

A critical analysis of the land rights of San and Bakgalagadi in Botswana reveals that they generally lack clearly defined land tenure rights. While the government pays lip service to “land rights for all” in its constitution and land policy papers, it is apparent that the district land boards and the government ministries responsible for land, such as the Ministry of Lands and Housing, and the Ministry of Local Government and Rural Development, have deliberately chosen not to allocate land to Indigenous communities, nor have they ruled on behalf of those communities that have filed appeals with the government. The new Botswana land policy (Republic of Botswana, 2015) has mainly served to allow individuals with means (i.e., those who are wealthy) to take over land occupied by poorer people, including those who define themselves and who are recognized internationally as “Indigenous Peoples.”

San, for their part, continue to seek recognition of their land rights through organizing themselves, seeking funding to support negotiations, lobbying government and, in some cases, taking the government to court, with a certain degree of success. One way that San can ensure that they have their rights to land defined more clearly is to have them spelled out in a future “white paper” on Botswana land policy. It would also be useful to have the rights of Indigenous Peoples included in a new version of the Botswana Constitution.

In many ways, Botswana provides an all-too-common example of the problems of land rights for Indigenous Peoples in Africa and elsewhere across the world, as reflected across this book. Part of the reason for this situation is the weak protections of communal land rights. San in Botswana have faced challenges when it comes to political recognition and acceptance by the government of the concept of Indigeneity as a basis for rights. Interestingly, Botswana government officials regularly attend the United Nations Permanent Forum on Indigenous Issues (UNPFII) where they meet with representatives of San organizations. However, Botswana government officials have been reluctant to meet face-to-face with representatives of San communities in Botswana itself. Thus, it remains to be seen what progress local and international efforts will bring when it comes to ensuring greater security of land tenure for the country’s Indigenous Peoples.

Introduction

Morocco sustains a rich diversity of cultures, languages, and livelihoods. Like in other countries, the social organization of the rural populations is closely linked to their historical relationship to land and to their immediate biophysical environment, as well as to centuries-old and ever-evolving demographic, legal, cultural, economic, and political transformations. In this chapter, we focus on Amazigh peoples living in the Moroccan High Atlas (see map, Figure 11.1), who have demonstrated resilience in the face of significant scarcity and uncertainty, through customary systems of natural resource governance – the agdal systems. Despite the many social, cultural, and legal shifts and its degradation or disappearance in many places, the agdal system still remains a robust institutional framework, which is not only a bulwark against the dispossession of communal lands but also sustains the cultural and economic relationships for stewarding resources among High Atlas populations.

Figure 11.1 High Atlas within present-day Morocco: Giandanielle Castangia, High Atlas Cultural Landscapes project run by the Global Diversity Foundation and financed by the MAVA foundation and the Darwin Initiative (DEFRA)

Socio-cultural Context of Morocco

Morocco is home to a conglomerate of culturally diverse populations whose geographical or historical connections extend well beyond the country’s borders into the wider Maghreb region, the whole of northwest Africa and the Iberian and Arabic peninsulas. This expansiveness gives life to a multiplicity of traditions, identities, languages, and dialects belonging to an immense array of cultural influences. However, in the High Atlas, a common macro-linguistic family can be identified, which connects with the wider Berber/Amazigh ethnicity. For a long time denominated as Berbers, especially by Europeans but not exclusively (Basset, Reference Basset, Houtsma, Basset and Arnold1908), in the last decades the term Amazigh has been used, especially by the Berberist/Amazighist movements. Amazigh, for many, means free or noble men (Chaker, 2004). The Berber/Amazigh peoples are often spoken of as the aborigine populations of northern and northwestern Africa, in reference to the idea that many of their cultural traits were already present in the region before the Arab conquest of the seventh and eighth centuries AD.

However, the arrival of proto-Berber/Amazigh cultures to the Maghreb from the regions of the Red Sea can be dated to around the local Neolithic period (approximately 3,000–5,000 BC), and they were of course preceded by other cultures that disappeared or fused with their onset (Camps, Reference Camps1995). Several millennia after their installation in the Maghreb, the first commercial colonies of other Mediterranean peoples appeared, first along the seacoast, which then moved into the hinterland. This was particularly the case with Greeks and Phoenicians, the latter notably turning later into Carthaginians through their intermingling with local Amazighs. These were then followed by wider conquests by Romans, Vandals, Byzantines, Arabs, Ottomans, Portuguese, Spaniards, and French.

The first Arab arrivals came with the Islamic conquest of the seventh century AD, and continued through to the eighth century (Valérian, Reference Valérian2011). This was followed by new invasions of Arab Bedouin tribes coming from the Middle East, like the Beni Hilal and the Beni Sulaim toward the eleventh century (Camps, Reference Camps1995). A few centuries later, populations of Arab or Arabized Muslims and Jewish peoples immigrated to the Maghreb from the Iberian Peninsula, escaping the Christian Reconquista of the fifteenth century (Zayas, Reference Zayas (de)2017). So did populations from Nigerian West Sudan (blad sudan) immigrate, especially during and after the Moroccan invasion of the Songhai Empire in the late sixteenth century (Mouline, Reference Mouline2009). Moreover, there has also been a constant arrival of chorfas (descendants of the prophet) from the Arabian Peninsula at different moments during Morocco’s history (Ferhat, Reference Ferhat1999).

This movement of people created a significant ethno-linguistic diversity across Morocco. A significant portion of the Moroccans of the country’s population speaks one of various Amazigh languages,Footnote ¹ yet until the creation of the new Moroccan Constitution in 2011, and particularly Article 5 which recognizes the linguistic and cultural rights of the Amazigh/Berber-speaking populations, Arabic was the only state-recognized language and was the promoted identity (Aït Mous, Reference Aït Mous2011). As a result, since 2011, Amazigh languages (increasingly referred to as Tamazight in an effort to unify the diverse idioms and dialects that compose the Amazigh linguistic family), have been recognized as official, even if the relevant laws were only promulgated in September 2019,Footnote ² and even if Arabic remains the language of the state administration, schools, business, and work (Benzakour, Reference Benzakour2007).

Morocco can be roughly divided into two large ethnolinguistic segments, one Arabophone (to refer to those populations speaking Darija, the Moroccan Dialectal Arabic with many Amazigh imprints) and one Amazighophone (to refer to those populations speaking one of the three main Amazigh linguistic variants as their mother tongue: Tarifit in the north, Tamazight around the Middle Atlas and Central High Atlas, and Tachelhit around the southern High Atlas and southern parts of Morocco). Arabophone populations constitute the majority of the population, and are concentrated mainly in the plains, generally in the most fertile areas, while Amazighophones are mainly concentrated in the mountains, in arid areas or in the south before the western Sahara, generally distant from the cities and the coast.

The 2011 Constitution recognizes in its preamble the Arab-Islamic, Amazigh, Saharo-Hassani, African, Andalusian, Hebrew, and Mediterranean components of Moroccan identity, demonstrating a progressive development toward the recognition of Morocco’s great cultural diversity. Since Morocco’s independence from France and Spain in 1956, the country’s territorial organization has blurred traditional tribal and ethno-lineage distributions (Chanbergeat, Reference Chanbergeat1961), although the reference to its tribal organization remains sociologically significant. However, in order to promote fraternity among the different groups in Morocco, and to avoid what could be unproductive Indigenist competitions, a broad agreement in Morocco emerged decades ago to speak of rural and local communities instead of “Indigenous Peoples.” To respect this social contract, which is still held by the majority of Moroccans, we will treat terms such as common lands or local community lands as synonymous with Indigenous Peoples’ lands. In addition, in order to be context-based, we will use the terms Berber and Amazigh according to the period of history discussed.

The Socio-cultural History of High Atlas Communities: The Resilience of Customary Systems

Until the time of independence, rural Morocco, and most particularly the High Atlas, was organized into tribal groups. High Atlas tribes implied a common real but also symbolic kinship ascendance, which, according to each situation and need, could conglomerate into greater social structures (tribal confederations) or smaller units connected by a system of alliances called leff-s or çoff-s (Lakhsassi & Tozy, Reference Lakhsassi and Tozy2000). These multifractal groups maintained relations with the Makhzen (the state or central power, the head being the King or Sultan of Morocco), but this varied according to the region and shifting political interests and hierarchies. (While these socio-political systems are largely deactivated today, they still have a certain functionality at the lower scales of the tribal system such as with tribal subfractions, and the tribe is still very often a source of social and cultural identities.) At the same time, the populations of the cities were diverse, even if social groupings along ethnic and tribal lines could be found, especially through the crafts organized by certain social guilds (Massignon, Reference Massignon1925).

These frameworks of belonging and cooperation among tribal society cohered, case by case, permanently, punctually or ad-hoc, depending on the stakes of the moment, according to a model described by many anthropologists as segmental (Gellner, Reference Gellner1969). They mainly oscillated between basic structures like the douar (hamlet) and large tribal confederations passing through tribal fractions or cantons and tribes, nested as if a set of Russian matryoshka dolls.

While recognizing one way or another the primacy of the Sultan of Morocco, at least on the spiritual level, as well as Islamic law, and at the same time accepting the physical presence of political, administrative, or judicial personnel among them (e.g., caidFootnote ³, adoulFootnote ⁴), the tribes retained a variable but generally quite important degree of autonomy, or even a de facto independence (Montagne, Reference Montagne1930). All tribes had community institutions in charge of local government, natural resource distribution and use, deliberation, and justice. In this sense, local customary law applied most prominently, without questioning the status of Islamic law, which remained in effect for certain areas like personal and moral conduct.

Although there were some common basic principles for these customary legal systems among all tribal groups and subgroups (e.g., cantons or tribal fractions) (Berque, Reference Berque1978; Dresch, Reference Dresch1939), their provisions could vary greatly, especially across geographical distances. However, the institutions responsible for enforcing these laws did not have jurisdiction beyond the territory of each tribal grouping. Thus, parties settled intertribal issues either through force or more likely through negotiated pacts in order to avoid violence (Berque, Reference Berque2001). In this context, while central power changed hands regularly over time, local High Atlas communities maintained a great customary diversity without really ever seeing a unified system imposed. Even the units of measurement linked to taxation under the prerogative of the Makhzen were never unified before the French and Spanish twentieth-century Protectorates (Hibou & Tozy, Reference Hibou and Tozy2020).

In this context of highly diversified territorial autonomies, the faqihs (Muslim clerics) were also forced to adapt. Rural Berberophone populations displayed great ingeniousness in the interpretation of Islamic law or what is locally called the use of hyal-s fiqhya, meaning creative or crafty “fiqhing” (doing the faquih). These practices allowed for continuous syncretism between pre-Muslim and Muslim religious traditions in a way that always managed, nevertheless, to avoid a direct confrontation between the two, and somehow astoundingly maintained a generalized sense of the whole as being strictly Muslim. This great flexibility permitted the inclusion of very important rural contingents into the broader Moroccan Muslim community, building a solid base for future Moroccan political expansions or consolidations.

The Survival of Amazigh Land Rights in the High Atlas

The main Moroccan laws governing access to rural lands and other natural resources, such as those held by the tribes of the High Atlas, date from a few years after the Protectorate in 1912. These have not changed much since then — and will not change much even if certain nouveautés are announced in the leadup to publication.Footnote ⁵ Examples include the laws regulating the public domain, habous (mortmain, or lands and property held inalienably), registration of land, forest estates, collective lands, and the arganeraie (argan tree forests), among others. The dahir (Moroccan legal decree) of April 27, 1919, on collective lands, sought to meet the needs of colonialists and Berbers. Today, more than 100 years after this dahir, it poses a series of challenges, to which a recent amendment to this law has tried to respond, without questioning the basis of the original text.

This decree on collective lands largely ignores the notion of common property and provides only cursory mention of customary law (Bouderbala, Reference Bouderbala2013). Nevertheless, this regulatory system has been reappropriated and reinterpreted by different actors to recognize common property or land use rights for Amazigh communities. The state has also used this system to recognize its rights to use land and natural resources considered public property, like water, forests, arganeraie or extensive pastoral lands. The state has been able to use this decree to seize communal land for projects considered “of general interest” (the definition and content changing with political trends). Amazigh have only been able to preserve the traditional management of lands and natural resources where no clashes with the “general interest” are found.

The tensions weighing on this delicate balance are accentuated by new forms of land grabbing (Mahdi, Reference Mahdi2014), and new attitudes and political hierarchies in local communities that alter preferences from traditional communal lands to new systems (Kadiri & Er-rayhany, Reference Kadiri and Er-rayhany2019). These new systems range from simple open access to the individualization and privatization of common lands.

In any case, the “title of occupation” (i.e., use right) varies, referring to a mere presumption of collective status, an administrative delimitation, or a collective land registration. The Ministry of the Interior oversees the identification and registration of the landowning communities and their lands, and ensures their preservation. The problem in practice is that the title, whatever its form (presumed collective, delimited administratively, or even registered as a collective), ultimately does not protect these lands. For example, see the case of the Gharb in western Morocco (Karsenty, Reference Karsenty1988). The Ministry of the Interior has, in the last instance, the right of interpretation of these titles, and can ignore these as part of its “supervisory authority.”

Since 1919, the government has removed communal lands from the jurisdiction of the legislature and the judiciary. A law passed by the Moroccan Parliament in 2019Footnote ⁶ governs the question of collective land, but like the 1919 decree that it replaced, it guarantees the exclusive control of the executive over communal lands. A joint circular from the Minister of Justice and the Minister of the Interior even prohibited the courts from hearing cases on collective land for some time.Footnote ⁷ An article in the 1919 decree made it impossible to appeal to the courts against decisions of the Tutorship Council (an administrative arbitration commission chaired by the Minister of Interior), making it one of the only administrative authorities not subject to judicial review. While the 2019 reforms opened the door to judicial review on communal land decisions, these new provisions restrict the court from interpreting the rules of management of this particular type of property, which remains the exclusive responsibility of the executive power.

The type of property right decreed by the dahir of April 27, 1919, on collective lands is restrictive. It is a right exercised under the tutelage of the state, and it is inalienable (Guillaume, Reference Guillaume1960). The state, in contrast, has the ability to appropriate a portion of these lands for projects of “general interest,” which can include everything from a dam for hydroelectric power and water provision to golf and tourist resort construction, military training grounds, and hunting grounds for Saudi clients. Ultimately these appropriations can mean the sale of traditionally common land to private investors. These transfers trigger resistance, but they generally succeed when they are fully backed up by the state. The recent land law reforms in 2019 have opened more possibilities for collective land sales to investors, and enabled further land-grabbing (Mahdi, Reference Mahdi2014).

Land Governance by Amazigh Communities: The Agdal System

The contemporary legislative framework provides a precarious but nuanced layer of protection for High Atlas populations and their land rights. While the state can appropriate communal lands, there is a certain recognition of inalienable collective ownership, thus institutionalizing the communal dimension linked to the tribes, inherent in land and resource stewardship.

There is an intricate legal mosaic in the High Atlas, which includes individual private ownership (e.g., rights to fruit-bearing trees or livestock), public or state dominion (e.g., over forests, pastures and hydrological resources), communal or collective usufruct rights (e.g., water management systems, pastoralism and certain forms of wood collection), along with recognized communal property rights over certain grazing lands. Central to the well-functioning of this interplay is the capacity of traditional communities to effectively enforce a customary regulatory framework and make it be respected by all the members of the community of users (e.g., the tribes or smaller parts of the tribes), by their neighbors and by the state, for which the existence of a well and strongly present community is always necessary.

This Indigenous governance mechanism is instrumental not only in the preservation of the different tribal identities, cultural norms, and traditional land governance customs, but harmonizes relationships and often competing interests. The agdal system, historically and culturally integral to Amazigh High Atlas communal governance (Dominguez et al., Reference Dominguez, Zorondo and Garcia-Reyes2010, embodies the complex intertwining between different human groups and actors, land and natural resources within a traditional legal context), embodies the complex intertwining between different human groups and actors, land, and natural resources within a traditional legal context.

Rooted in the cultural heritage of Amazigh peoples, these self-regulated agdal-like units can be counted by hundreds of thousands across the Maghreb region, but they are legally unrecognized in Morocco, yet they are still indispensable to sustainability and community-driven governance. They exemplify the resilience and adaptability capacities of High Atlas communities, crucial for maintaining socio-political and environmental equilibriums (Auclair and Alifriqui, Reference Auclair and Alifriqui2012; Borrini-Feyerabend, Reference Borrini-Feyerabend2010; Da Silva et al., Reference Da Silva, D’Ambrosio, Dominguez and M’Sou2020).

Discussion: From Dispossession to Preserving Cultural and Ecological Resilience

Since 1919, collective lands like those held and stewarded by the Amazigh in the High Atlas have been under the control of the executive powers, and the 2019 law affirms this. The state can, and has, appropriated these lands for reasons of “general interest” or public utility.Footnote ⁸ The state today considers the mobilization of a significant part of these communal lands as a national development priority by members of the communities (on an individual and private basis), or more often for the benefit of outside investors.

The existing legal framework threatens the survival of Amazigh’s collective modes of social organization, and their lands and resource governance – for example, the agdal system. The challenge in the High Atlas today is not so much access to or recovery of land by Amazigh, but rather the preservation of what exists from appropriation. There are many forces at play that encroach on customary institutions, such as nationalism, the state bureaucracy, and other assimilative forces that focus on private interests and development. It is important to frame the cultural institutions, language, and rights of Amazigh as an essential part of the country’s national heritage, central to the preservation of a cultural and linguistic wealth, and foundational to the resilient management of fragile natural resources in an environment characterized by harshness.

In considering future prospects for the peoples of the High Atlas, there are several opportunities that can be leveraged to move forward. A key opportunity lies in the increasing global recognition of the protection of Indigenous Peoples and local communities, and their customary practices, alongside Morocco’s growing national and international commitments in this area. These international frameworks provide a robust foundation for advocating enhanced legal protections and greater autonomy in managing Indigenous Peoples’ lands and resources. The alignment of Morocco’s policies with these instruments presents an opportunity for the High Atlas communities to reinforce their traditional practices within a legal structure that recognizes and values their cultural and environmental contributions, and which is already being put into practice in collaboration with local, national, and international NGOs and other public and private development agents.

Additionally, there are opportunities in exploring community-led initiatives in sectors such as agroecology, which blends traditional agricultural practices with sustainable approaches to food production, or community-managed tourism or eco-friendly projects that capitalize on the unique natural and cultural assets of the High Atlas region. Such initiatives can not only contribute to local economic development but also promote social cohesion and environmental stewardship, while reinforcing Amazigh identity and cultural rights.

Conclusion

The recognition of Amazigh languages and identities in the 2011 Moroccan Constitution, and the importance of the High Atlas population in all of this, seems to be a significant step toward a more plural society. However, this recognition does not necessarily translate into practical and operational guarantees for Amazigh and their lands, and this connection must still be sought from both the macro (national and international) and the micro (local) perspectives. Indeed, communities such as those in the High Atlas have managed to preserve much of their identity, culture, and legal systems, particularly in respect to the land, and this despite facing numerous challenges throughout history, still exist today. Nonetheless, Amazigh culture, lands, and institutions remain largely unprotected by the state.

The protection and promotion of traditional ways of life and governance, as well as the preservation of languages and cultural practices, require tangible actions that go beyond symbolic declarations. Therefore, it is essential to develop integrated strategies involving Amazigh populations that reflect their values and priorities. There is also much to learn from the agdal system, which offers resilience in an increasingly uncertain world. These systems have been effective in sustainably managing resources in a harsh environment, and have supported very adaptive and dynamic societies able to transform themselves and maintain a strong local sense of identity and micro-political control of their lands, natural resources, and social affairs.

The role of the j’maa (the local assembly), the consensus-based nature of decisions, and the customary sanctions, are all based on oral law, which form the bedrock of rural Amazigh community governance. The oral laws of the High Atlas Amazigh peoples are deeply intertwined with their cultural and social fabric. Passed down and constantly evolving through generations, this oral tradition ensures that the laws are living, dynamic entities, adaptable to changing circumstances while retaining their core principles. Its effectiveness lies in its inclusive and participatory oral nature, embodying a form of direct democracy that takes into account the many voices of community members, and knows the keystones of the local societies, while allowing for effective and dynamic negotiation. However, it must be remembered that women and younger generations are still excluded from the j’maa, since generally it is the male head of the household that speaks, negotiates, and votes in the name of all the household.

Future prospects for the High Atlas communities are relatively promising after decades and even centuries of conflict with the state and discrimination. Opportunities are now slowly appearing alongside Morocco’s growing international commitments that can support the advocacy of national and transnational Amazighs movements.

Adivasis, or India’s Indigenous Peoples, constitute 8.6 percent of India’s total population (Government of India, 2013). Land and forests are the “twin pillars of the Adivasi economy” (Ambagudia, Reference Ambagudia2010, p. 61). The term “Adivasi” is believed to have originated in the state of Bihar during the 1930s (Ambagudia, Reference Ambagudia2019; Hardiman, Reference Hardiman1987) and was popularized by social worker A. V. Thakkar in the 1940s to advance the unique cultural, property, and political rights of Adivasis. Today, many tribal communities employ it as a political term of self-reference in contemporary India. Despite being a signatory to the International Labour Organization ILO Convention 107 (1957), the first international instrument to protect Indigenous Peoples from labor market discrimination, and endorsing the United Nations Declarations on the Rights of Indigenous Peoples (UNDRIP) (2007), India recognizes neither the term “Indigenous Peoples”Footnote ¹ nor Adivasi for that matter. The contention revolves around the additional rights and privileges that recognition may grant Indigenous Peoples or Adivasis, particularly around rights to lands and natural resources (particularly as these relate to consent) (Nikolakis & Hotte, Reference Nikolakis and Hotte2020).

The Indian state uses the statutory and constitutional term “Scheduled Tribes” (STs) to differentiate Adivasis from other social groups.Footnote ² To paraphrase Article 342(1) of India’s Constitution, STs are “the tribes or the tribal communities or parts of or groups within tribe or tribal communities” whom the president may specify as STs. There are no criteria set out in the constitution for declaring STs. The Indian state has adopted five criteria for determining STs – primitive traits, a distinctive culture, geographical isolation, shyness of contact with the community at large, and backwardness – prescribed by the Lokur Committee in 1965 for recognizing an ST. Most of these criteria are outdated in contemporary India but continue to be used and have important implications for Adivasi recognition and land rights – being granted ST status provides additional rights and privileges. Adivasis, however, would prefer to define themselves based on their relationship with land, water, and forests.

In 2006, the Indian state enacted one of the key Adivasi land rights mechanisms, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act (commonly known as Forest Rights Act, FRA). The FRA grants Adivasis the heritable, inalienable and non-transferrable legal rights to four hectares of forest land per person. There are also other statutory provisions, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, the Panchayat (Extension to the Scheduled Areas) Act 1996 (PESA), the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (LAA), Compensatory Afforestation Fund Rules 2018, and many others at the federal and state levels to recognize and safeguard the land interests of Adivasi.

Against this backdrop, the chapter analyzes the various nuances of Adivasi land rights. First, the chapter discusses the land tenure systems in Adivasi areas. Second, it briefly describes the legislative measures enacted by various federal and state governments to protect Adivasi land rights and their ramifications over Adivasis. Third, it deals with federal legal measures to allot land to Adivasis. Fourth, it delves into the land situation in the Adivasi area. Fifth, it discusses the nature and scale of Adivasi land alienation. Sixth, it explores the various strategies that Adivasis have adopted to advance and safeguard their land rights. This is followed by the conclusion. Recommendations are offered for strengthening Adivasi land rights in practice, which includes the need for safeguards, consistent governance, and independent monitoring of land rights.

Land Tenure Systems in Adivasi Areas

While there is heterogeneity, traditionally, Adivasi communities had individual and communal ownership, and these have continued into the contemporary period, albeit with some changes. Individual land ownership broadly includes kitchen garden/homestead land; swidden land, terrace land; paddy land; wetland acquired through inheritance, purchase, gift, and mortgage; and dry lands or up lands. Individual lands are transferred through the patrilineal system of inheritance. In contrast, collective areas include sacred sites, such as ritual places, funerals and cremation sites, and sacred groves; swidden land (dangar) owned collectively by clan members or belonging to the village; socio-culturally significant lands; village grasslands and grazing land; and commons for thatching grass and firewood (among others) (Kumar & Choudhary, Reference Kumar and Choudhary2005).

In central and eastern India, Adivasis use a clan-based land tenure system that provides customary rights to land, trees, and forests, with collective decision-making around use (Kumar & Choudhary, Reference Kumar and Choudhary2005). Among the tribes of northeast India, the Nagas of Manipur, for example, have village community land, clan, or lineage land, and individual private land defines the land ownership system (Devi, Reference Devi2006). In contrast, a feudal system of land ownership exists among the Kuki and Kuki-Chin-Mizo tribes’ villages, where the village chief owns village lands, and the villagers are considered tenants. The tribal communities of the Sixth Scheduled area of Assam, Meghalaya, Mizoram, and Tripura of northeast India largely have community ownership of almost all lands, except the land under reserve forests, with customary legal and institutional mechanisms for their management and governance, and some individual ownership of lands (Land Portal, n.d.). Nevertheless, the state now controls most of the lands under communal ownership.

Federal Constitutional Framework and Land Legislation

Adivasi lands include lands located in the Fifth and Sixth Schedule Areas, and those that the Adivasis possess outside the Scheduled Areas. At the institutional and federal levels, the Indian state has established the National Commission for Scheduled Tribes and the Ministry of Tribal Affairs. These examine issues concerning Adivasi land, and both conduct or commission studies to understand the Adivasi land rights, and the extent of land alienation and restoration. State governments have Adivasi welfare departments to advance and safeguard Adivasi land rights. The states also have dedicated research institutes to conduct studies on Adivasi socio-economic needs and land rights.

On the legislative front, both the federal and state governments have enacted laws to protect and promote Adivasi land rights (see Table 12.1). Central laws such as the PESA, the FRA, and the LAA protect and advance Adivasi land rights. The PESA prohibits Adivasi land alienation and restores lands unlawfully dispossessed in Scheduled Areas. The FRA grants Adivasis communal and individual rights to forest land and empowers them to make decisions on Adivasi land alienation and forest conversion. The LAA prohibits land alienation in Scheduled Areas. In the case of unavoidable circumstances where land acquisition is essential, the prior consent of the Gram Sabha (village council) is mandatory. In addition, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 punishes those guilty of wrongfully occupying or cultivating Adivasi land.

Table 12.1

Legislation for protection and promotion of land rights of adivasis

Table 12.1 ()

Table 12.1 (Part A)Long description

The table has three columns for federal or state, legislative measures, and descriptions.

Row 1. Column 1 reads. Federal.

Column 2 reads. The Scheduled Castes and Scheduled Tribes, Prevention of Atrocities, Act 1989.

Column 3 reads. Makes it a punishable offence to wrongfully occupy or cultivate any land owned by or allotted to a member of a S T, or allotted or transferred lands.

Row 2. Column 1 reads. Federal.

Column 2 reads. The Panchayat, extension to the Scheduled Areas, Act 1996.

Column 3 reads. Empowers the Gram Sabha to prevent Adivasi land alienation and restore lands that were unlawfully dispossessed in Scheduled Areas.

Row 3. Column 1 reads. Federal.

Column 2 reads. The Scheduled Tribes and Other Traditional Forest Dwellers, Recognition of Forest Rights, Act 2006. Grants land rights to Adivasis.

Column 3 reads. Endows the Gram Sabha with a critical role in customary forest and resource governance, including decision-making for Adivasi land alienation and forest conversion.

Row 4. Column 1 reads. Andaman and Nicobar Islands.

Column 2 reads. The Andaman and Nicobar Islands, Protection of Aboriginal Tribes, Regulation 1956. Mandated to protect the S Ts in the four tribal reserves.

Column 3 reads. This regulation empowers the government to prohibit and regulate the entry of outsiders, and restricts the transfer of lands to non-tribals in the reserves.

Row 5. Column 1 reads. Andhra Pradesh.

Column 2 reads. The Andhra Pradesh, Scheduled Areas, Land Transfer Regulation 1959, amended by the Andhra Pradesh, Scheduled Areas, Land Transfer, Amendment, Regulations of 1970, 1971, and 1978.

Column 3 reads. Prohibits transfer of land to non-tribals in Scheduled Areas. Authorizes government to acquire land in case a tribal purchaser is not available. There is, however, no legal protection to S T land outside the scheduled areas.

Row 6. Column 1 reads. Assam.

Column 2 reads. The Assam Land and Revenue Regulations 1886, amended in 1981.

Column 3 reads. Chapter 10 of the Regulation prohibits land alienation in tribal belts and blocks.

Row 7. Column 1 reads. Arunachal Pradesh.

Column 2 reads. Bengal Eastern Frontier Regulation 1873, as amended.

Column 3 reads. Prohibits transfer of tribal land.

Table 12.1 ()

Table 12.1 (Part B)Long description

The table has three columns for federal or state, legislative measures, and descriptions.

Row 8. Column 1 reads. Chhattisgarh.

Column 2 reads. A. Sections 165 and 170 of Madhya Pradesh Land Revenue Code 1959. B. Madhya Pradesh Land Distribution Regulation Act 1964.

Column 3 reads. Sections 165 and 170B of the Code protects S Ts against land alienation.

The 1964 Act is in force in the scheduled areas.

Row 9. Column 1 reads. Dadra and Nagar Haveli.

Column 2 reads. Dadra and Nagar Haveli Land Reform Regulation 1971.

Column 3 reads. Protects tribal interests in lands.

Row 10. Column 1 reads. Gujarat.

Column 2 reads. The Bombay Land Revenue Code as amended by Bombay Land Revenue, Gujarat Second Amendment Act 1980.

Column 3 reads. Sections 73 A, 73 A A, 73 A B, 73 A C, and 73 A D prohibit transfer of tribal lands and provide for restoration of alienated land in Gujarat.

Row 11. Column 1 reads. Jharkhand.

Column 2 reads. A. Chhota Nagpur Tenancy Act 1908, applies to old Ranchi district, mostly comprising Mundas and Uraons. B. Santhal Parganas Tenancy, Supplementary Provision Act 1940. C. Bihar Scheduled Areas Regulation 1969. D. Wilkinson’s Rule 1837 applies to Hos of Singhbhum.

Column 3 reads. Prohibit alienation of tribal land and provide for restoration of alienated land.

Row 12. Column 1 reads. Karnataka.

Column 2 reads. The Karnataka Scheduled Caste, S C and Scheduled Tribes, Prohibition of Transfer of Certain Lands Act 1975.

Column 3 reads. Prohibits transfer of land assigned to S Cs and S Ts by government. No provision to safeguard S C or S T interest in other lands.

Row 13. Column 1 reads. Kerala.

Column 2 reads. The Kerala Scheduled Tribes, Regulation of Transfer of Land and Restoration of Alienated Land Act 1975.

Column 3 reads. Act of 1975 made applicable in effect from June 1, 1982, by notification of January 1986. Prohibits transfer of land of tribals and provides for restoration.

Row 14. Column 1 reads. Lakshadweep.

Column 2 reads. The Laccadive Islands and Minicoy Regulation I of 1912. Lakshadweep, Protection of Scheduled Tribes, Regulation 1964.

Column 3 reads. Alienation of tribal lands prohibited in entire union territory of Lakshadweep.

Table 12.1 ()

Table 12.1 (Part C)Long description

The table has three columns for federal or state, legislative measures, and descriptions.

Row 15. Column 1 reads. Madhya Pradesh.

Column 2 reads. A. Sections 165 and 170 of Madhya Pradesh Land Revenue Code 1959. B. Madhya Pradesh Land Distribution Regulation Act 1964.

Column 3 reads. Sections 165 and 170 B of the Code protect S Ts against land alienation. The 1964 Act is in force in Scheduled Areas of Madhya Pradesh.

Row 16. Column 1 reads. Maharashtra.

Column 2 reads. A. The Maharashtra Land Revenue Code 1966, as amended in 1974. B. The Maharashtra Restoration of Lands to Scheduled Tribes Act 1974

Column 3 reads. Prohibits alienation of tribal land and provides for restoration of both illegally and legally transferred lands of a tribe.

Row 17. Column 1 reads. Manipur.

Column 2 reads. The Manipur Land Revenue and Land Reforms Act 1960.

Column 3 reads. Section 153 forbids transfer of tribal land to non tribals without permission of the District Collector. The statute has not been extended to hill areas; therefore, hill area tribals are not covered.

Row 18. Column 1 reads. Meghalaya.

Column 2 reads. Meghalaya Transfer of Land Regulation Act 1971.

Column 3 reads. Prohibits alienation of tribal land.

Row 19. Column 1 reads. Nagaland.

Column 2 reads. Bengal Eastern Frontier Regulation 1873 and Assam Land and Revenue Regulation 1866, as amended vide Nagaland Land and Revenue Regulation, Amendment, Act 1978.

Column 3 reads. Prohibition of transfer of tribal lands.

Row 20. Column 1 reads. Odisha.

Column 2 reads. The Orissa Scheduled Areas Transfer of Immovable Property by Scheduled Tribes Regulation 1956. The Orissa Land Reforms Act 1960.

Column 3 reads. Prohibits transfer of tribal land and provides for its restoration, both in Scheduled Areas, 1956 Regulation, and non-Scheduled Areas, 1960 Act.

Row 21. Column 1 reads. Punjab.

Column 2 reads. The Punjab Land Alienation Act 1916.

Column 3 reads. Prevents alienation of tribal lands to non-tribals.

Row 22. Column 1 reads. Rajasthan.

Column 2 reads. The Rajasthan Tenancy Act 1955. The Rajasthan Land Revenue Act 1956.

Column 3 reads. Sections 175 and 183 B specifically protect tribal interest in land and provide for restoration of alienated land to them.

Table 12.1 ()

Source: Government of India, not dated, pp. 87–92.

Table 12.1 (Part D)Long description

The table has three columns for federal or state, legislative measures, and descriptions.

Row 23. Column 1 reads. Sikkim.

Column 2 reads. Revenue Order No. 1 of 1917. The Sikkim Agricultural Land Ceiling and Reform Act 1977.

Column 3 reads. Order of 1917 still in force. Chapter 7 of the 1977 Act restricts alienation of lands by S Ts but is not in force.

Row 24. Column 1 reads. Tamil Nadu.

Column 2 reads. Standing Orders of the Revenue Board B S O 15 to 40. Law against land alienation not enacted.

Column 3 reads. B S O 15 to 40 apply only to Malayali and Soliga tribes. Prohibit transfer of assigned land without approval of District Collector.

Row 25. Column 1 reads. Tripura.

Column 2 reads. Tripura Land Revenue and Land Reform Act 1960, as amended in 1974.

Column 3 reads. Act prohibits transfer of tribal land to others without permission of the Collector. Only lands transferred after January 1, 1969 are covered under restoration provision.

Row 26. Column 1 reads. Uttar Pradesh, U P or Uttarakhand.

Column 2 reads. Uttar Pradesh Zamindari Abolition and Land Reforms Act 1950, as amended by U P. Land Laws Amendment Act 1981.

Column 3 reads. Provides protection of tribal land. However, amending Act stayed by Allahabad High Court in Swaran Singh v. State Govt, 1981.

Row 27. Column 1 reads. West Bengal.

Column 2 reads. West Bengal Land Reforms Act 1955.

Column 3 reads. Chapter 2-A prohibits the alienation of tribal land and provides for restoration.

As Table 12.1 shows, the legal framework for Adivasi land rights is a complex mix of federal and state legislations. These legal measures grant land rights to Adivasis and promote and safeguard them from alienation by empowering the grassroots-level collective institutions (Gram Sabha). However, there are examples where the Gram Sabha has been misused and manipulated, and has enabled the alienation of Adivasi land.

Land Allotment to Adivasis

The most prominent legislative measures for providing land to Adivasi are the Central Land Ceiling ActFootnote ³ and state land ceiling laws, and the FRA.

Forest Rights Act

The Indian Parliament enacted the FRA to undo the historical injustices meted against Adivasi forest dwellers. The FRA recognizes and grants legal land rights to a maximum of four hectares of forest land. Section 6 of the FRA outlines the procedure for evaluating and recognizing Adivasi forest land tenure claims (Government of India, 2007; Nikolakis & Hotte, Reference Nikolakis and Hotte2020). To commence a claim, the Gram Sabha (village assembly) forms a Forest Rights Committee (FRC) consisting of 10–15 members, two-thirds of whom should be Adivasis. The FRC evaluates claims by employing criteria of (i) whether the claimant is an Adivasi and (ii) in case of a non-Adivasi claimant, whether the member has resided and depended on the forest for their livelihood for at least three generations prior to December 13, 2005. The FRC makes recommendations to the Gram Sabha, which evaluates these and makes recommendations to a Sub-Division Level Committee (SDLC), which, in turn, can accept or reject them and recommend them to the District Level Committee (DLC). An individual or community can appeal any SDLC or Gram Sabha decision within sixty days to the SDLC and the DLC. The decision of the DLC is final and binding.

As Table 12.2 highlights, by March 31, 2022, a total of 4,429,065 claims have been made under the FRA, consisting of 4,260,247 individual claims (96.18 percent) and 168,818 community claims (3.81 percent). Table 12.2 also shows a total of 2,234,292 titles distributed to Adivasi communities and other traditional forest dwellers, and just over 95 percent of these were for individuals (or 2,132,217 titles), and the remainder were communal titles (or 102,075 titles). In total, just over 15.9 million acres of forestland were distributed to Adivasi, of which just over 11.36 million acres were communal lands (71.42 percent), and the remainder were for individuals. It is argued that the state has given undue importance to and expanded individual rather than collective rights (Nikolakis & Hotte, Reference Nikolakis and Hotte2020), and thus dilutes the constitutional and collective rights of Adivasi communities (Bose et al., Reference Bose, Arts and van Dijk2012). Also, it is important to note that for nomadic and pastoral communities, their rights are not recognized through the FRA. However, they access forest resources, collecting non-timber forest products and other traditional resources, and their stock can access grazing lands and water (Government of India, 2007).Footnote ⁷

Table 12.2Forest land allotted to tribal people

Source: Lok Sabha Unstarred Question No. 3510, dated August 8, 2022, available at http://164.100.24.220/loksabhaquestions/annex/179/AU3510.pdf (NA/NR: Related figure is either not available or not reported.

Table 12.2Long description

The table gives the data of forest land given to the tribals in 4 columns namely, states, the number of claims received upto March 31 2022, the number of titles distributed upto Marcg 31, 2022, and the extent of forest land for which titles distributed in acres, from left to right in order. Columns 2 to 4 each are divided into three sub-columns namely, I or individual, C or community, and total. Below are the row-wise data for each state on the number of claims received up to March 31, 2022 by individual, community, and total values from left to right in order.

• For Andhra Pradesh, the corresponding values are 274078, 3294, 277372.

• For Assam, the corresponding values are 148965, 6046, 155011.

• For Bihar, the corresponding values are 8022, Not applicable, 8022.

• For Chhattisgarh, the corresponding values are 866955, 50806, 917761.

• For Goa, the corresponding values are 9758, 378, 10136.

• For Gujarat, the corresponding values are 182869, 7187, 190056.

• For Himachal Pradesh, the corresponding values are 2746, 275, 3021.

• For Jharkhand, the corresponding values are 107032, 3724, 110756.

• For Karnataka, the corresponding values are 288357, 5938, 294295.

• For Kerala, the corresponding values are 43466, 1109, 44575.

• For Madhya Pradesh, the corresponding values are 585326, 42187, 627513.

• For Maharashtra, the corresponding values are 362679, 12037, 374716.

• For Odisha, the corresponding values are 627998, 15282, 643280.

• For Rajasthan, the corresponding values are 85243, 2016, 87259.

• For Tamil Nadu, the corresponding values are 33755, 1082, 34837.

• For Telangana, the corresponding values are 204176, 2808, 206984.

• For Tripura, the corresponding values are 200696, 277, 200973.

• For Uttar Pradesh, the corresponding values are 92577, 1162, 93739.

• For Uttarakhand, the corresponding values are 3587, 3091, 6678.

• For West Bengal, the corresponding values are 131962, 10119, 142081.

• For Andaman and Nicobar Island, the corresponding values are 0, 0, 0.

• For Ladakh, the corresponding values are 0, 0, 0.

• For total, the corresponding values are 4260247, 168818, 4429065.

Below are the row-wise data for each state on the number of titles distributed up to March 31, 2022 by individual, community, and total values, from left to right in order.

• For Andhra Pradesh, the corresponding values are 210828, 1822, 212650.

• For Assam, the corresponding values are 57325, 1477, 58802.

• For Bihar, the corresponding values are 121, 0, 121.

• For Chhattisgarh, the corresponding values are 445573, 45303, 490876.

• For Goa, the corresponding values are 138, 11, 149.

• For Gujarat, the corresponding values are 91686, 4597, 96283.

• For Himachal Pradesh, the corresponding values are 129, 35, 164.

• For Jharkhand, the corresponding values are 59866, 2104, 61970.

• For Karnataka, the corresponding values are 14680, 1343, 16023.

• For Kerala, the corresponding values are 26745, 183, 26928.

• For Madhya Pradesh, the corresponding values are 266609, 27976, 294585.

• For Maharashtra, the corresponding values are 165032, 7084, 172116.

• For Odisha, the corresponding values are 452164, 7624, 459788.

• For Rajasthan, the corresponding values are 45135, 361, 45496.

• For Tamil Nadu, the corresponding values are 8144, 450, 8594.

• For Telangana, the corresponding values are 97434, 102, 97536.

• For Tripura, the corresponding values are 127931, 55, 127986.

• For Uttar Pradesh, the corresponding values are 18049, 861, 18910.

• For Uttarakhand, the corresponding values are 184, 1, 185.

• For West Bengal, the corresponding values are 44444, 686, 45130.

• For Andaman and Nicobar Island, the corresponding values are 0, 0, 0.

• For Ladakh, the corresponding values are 0, 0, 0.

• For total, the corresponding values are 2132217, 102075, 2234292.

Below are the row-wise data for each state on the extent of forest land for which titles are distributed, in acres, by individual, community, and total values, from left to tight, in order.

• For Andhra Pradesh, the corresponding values are 436606, 526454, 963060.

• For Assam, the corresponding values are not applicable.

• For Bihar, the corresponding values are not applicable.

• For Chhattisgarh, the corresponding values are 898010, 4783047, 5681057.

• For Goa, the corresponding values are 299, 17, 316.

• For Gujarat, the corresponding values are 156926, 1236490, 1393416.

• For Himachal Pradesh, the corresponding values are 5.96, 4742, 4748.

• For Jharkhand, the corresponding values are 153396, 103759, 257155.

• For Karnataka, the corresponding values are 19989, 36340, 56329.

• For Kerala, the corresponding values are 35449, 0, 35449.

• For Madhya Pradesh, the corresponding values are 902750, 1463614, 2366365.

• For Maharashtra, the corresponding values are 392929, 2736661, 3129589.

• For Odisha, the corresponding values are 666089, 337043, 1003132.

• For Rajasthan, the corresponding values are 63788, 12290, 76078.

• For Tamil Nadu, the corresponding values are 9626, not applicable, 9626.

• For Telangana, the corresponding values are 310916, 3631, 314547.

• For Tripura, the corresponding values are 460182, 91, 460274.

• For Uttar Pradesh, the corresponding values are 19190, 120776, 139966.

• For Uttarakhand, the corresponding values are 0, 0, 0.

• For West Bengal, the corresponding values are 21014, 572, 21586.

• For Andaman and Nicobar island, the corresponding values are 0, 0, 0.

• For Ladakh, the corresponding values are 0, 0, 0.

• For total, the corresponding values are 4547166, 11365529, 15912694.

Overall, the lands granted under the ceiling laws and the FRA have expanded Adivasis’ marginal and small-scale land holdings across India.Footnote ⁸

Landholding Patterns in Adivasi Areas

The data on Adivasi communities and land tenure, especially the number of operational holdings and area of operational holdings,Footnote ⁹ are largely drawn from different Agricultural Census reports. Though the Agricultural Census commenced in 1970–1971 with an interval of five years, and the most recent in 2015–2016,Footnote ¹⁰ the data on Adivasi land holdings were collected separately in the Third Agricultural Census (1981–1982) and continued since then. Tables 12.3 and 12.4 illustrate the statewide distribution and area of Adivasi operational holdings in last two Agricultural Census, and the percent changes over time (2005–6 to 2010–11, 2010–1, and 2015–6).

Table 12.3Statewide distribution of number of operational holdings for STs during agriculture census 2005–2006 to 2015–2016 (in’00)

Source: Government of India (2015, pp. 108–109; 2020, pp. 85–86).

Note: #excluding Jharkhand; Neg, negligible; NA, not applicable.

Table 12.3Long description

The table gives the statewide distribution of the operational landholdings for S Ts during the agricultural census from 2005 to 2011. It has 6 columns namely, states, corresponding values for the year 2005 to 2006, 2010 to 2011, 2015 to 2016, percent of variation during 2010 to 2011 over 2005 to 2006, and percent of variation during 2015 to 2016 over 2010 to 2011, from left to right in order. Below are the row-wise details.

• Andhra Pradesh, the corresponding values are 9267, 3871, 4056, negative 58.22%, negative 61.72%.

• Arunachal Pradesh, the corresponding values are 1064, 1065, 1103, 0.09%, 3.57%.

• Assam, the corresponding values are 4379, 4382, 4431, 0.07%, 1.12%.

• Bihar, the corresponding values are 1906, 2121, 2030, 11.28%, negative 4.29%.

• Chhattisgarh, the corresponding values are 11054, 11768, 12565, 6.46%, 6.77%.

• Goa, the corresponding values are 118, 211, 215, 78.81%, 1.90%.

• Gujarat, the corresponding values are 4875, 5043, 4981, 3.45%, negative 1.23%.

• Haryana, the corresponding values are 0, 0, 0, 0%, 0%.

• Himachal Pradesh, the corresponding values are 447, 560, 572, 25.28%, 2.14%.

• Jammu and Kashmir, the corresponding values are 1844, 1813, 2087, negative 1.68%, 15.11%.

• Jharkhand, the corresponding values are Not applicable, 9670, 9791, no data, 1.25%.

• Karnataka, the corresponding values are 4391, 4726, 5213, 7.63%, 10.30%.

• Kerala, the corresponding values are 873, 952, 1079, 9.05%, 13.34%.

• Madhya Pradesh, the corresponding values are 16274, 17823, 20005, 9.52%, 12.24%.

• Maharashtra, the corresponding values are 8798, 8635, 8560, negative 1.85%, negative 0.87%.

• Manipur, the corresponding values are 642, 643, 645, 0.16%, 0.31%.

• Meghalaya, the corresponding values are 2026, 2088, 2287, 3.06%, 9.53%.

• Mizoram, the corresponding values are 897, 917, 896, 2.23%, negative 2.29%.

• Nagaland, the corresponding values are 1687, 1778, 1959, 5.39%, 10.18%.

• Odisha, the corresponding values are 14074, 14255, 14605, 1.29%, 2.46%.

• Punjab, the corresponding values are 0, 0, 0, 0%, 0%.

• Rajasthan, the corresponding values are 9673, 11198, 12281, 15.77%, 9.67%.

• Sikkim, the corresponding values are 302, 365, 312, 20.86%, -14.52%.

• Tamil Nadu, the corresponding values are 686, 744, 946, 8.45%, 27.15%.

• Telangana, the corresponding values are Not applicable, 6724, 7125, no data, 5.96%.

• Tripura, the corresponding values are 1558, 1635, 1641, 4.94%, 0.37%.

• Uttarakhand, the corresponding values are 297, 297, 793, 0.00%, 167.00%.

• Uttar Pradesh, the corresponding values are 556, 709, 281, 27.52%, negative 60.37%.

• West Bengal, the corresponding values are 5516, 5823, 5996, 5.57%, 2.97%.

• Andaman and Nicobar Islands, the corresponding values are 0, 0, 0, 0%, 0%.

• Chandigarh, the corresponding values are 0, 0, 0, 0%, 0%.

• Dadra and Nagar Haveli, the corresponding values are 127, 129, 132, 1.57%, 2.33%.

• Daman and Diu, the corresponding values are 6, 7, 6, 16.67%, negative 14.29%.

• Delhi, the corresponding values are 0, 0, 0, 0%, 0%.

• Lakshadweep, the corresponding values are 93, 94, 95, 1.08%, 1.06%.

• Puducherry, the corresponding values are 0, 0, 0, 0%, 0%.

• For the states in total, the corresponding values are 103431, 113322, 126687, 9.57%, 5.53%.

Table 12.4Statewide distribution of area operated by operational holdings for STs during agricultural census 2005–2006 to 2015–2016 (area in’00 ha.)

Source: Government of India (2015, pp. 109–110; 2020, pp. 87–88).

Note: #excluding Jharkhand; Neg, negligible; NA, Not applicable

Table 12.4Long description

The tablegives the statewide distribution of operational landholdings for S Ts during the agricultural census between 2 periods between 2005 and 2006, and 2006 and 2015. It has 6 columns namely, states, the corresponding values for 2005 to 2006, 2010 to 2011, 2015 to 2016, percent of variation during 2010 to 2011 over 2005 to 2006, and percent of variation during 2015 to 2016 over 2010 to 2011, from left to right in order. The row-wise details are as follows.

• Andhra Pradesh, the corresponding values are 12,120, 4,774, 4,321, negative 60.61, negative 9.49.

• Arunachal Pradesh, the corresponding values are 3,516, 3,803, 3,763, 8.16, negative 1.05.

• Assam, the corresponding values are 4,901, 5,166, 5,098, 5.41, negative 1.32.

• Bihar, the corresponding values are 995, 1,055, 1,032, 6.03, negative 2.18.

• Chhattisgarh, the corresponding values are 22,103, 21,587, 21,241, negative 2.33, negative 1.60.

• Goa, the corresponding values are 79, 241, 224, 205.06, negative 7.05.

• Gujarat, the corresponding values are 9,690, 9,685, 9,584, negative 0.05, negative 1.04.

• Haryana, the corresponding values are 0, 0, 0, 0, 0.

• Himachal Pradesh, the corresponding values are 427, 502, 490, 17.56, negative 2.39.

• Jammu and Kashmir, the corresponding values are 1,435, 1,298, 1,347, negative 9.55, 3.78.

• Jharkhand, the corresponding values are NA, 14,306, 13,879, no data, negative 2.98.

• Karnataka, the corresponding values are 7,249, 7,052, 7,297, negative 2.72, 3.47.

• Kerala, the corresponding values are 302, 344, 383, 13.91, 11.34.

• Madhya Pradesh, the corresponding values are 32,333, 31,706, 31,379, negative 1.94, negative 1.03.

• Maharashtra, the corresponding values are 15,288, 15,580, 15,099, 1.91, negative 3.09.

• Manipur, the corresponding values are 789, 790, 792, 0.13, 0.25.

• Meghalaya, the corresponding values are 2,377, 2,862, 2,974, 20.40, 3.91.

• Mizoram, the corresponding values are 1,068, 1,045, 1,114, negative 2.15, 6.60.

• Nagaland, the corresponding values are 11,696, 10,715, 9,535, negative 8.39, negative 11.01.

• Odisha, the corresponding values are 17,483, 16,147, 15,380, negative 7.64, negative 4.75.

• Punjab, the corresponding values are 0, 0, 0, 0, 0.

• Rajasthan, the corresponding values are 17,658, 17,850, 17,511, 1.09, negative 1.90.

• Sikkim, the corresponding values are 569, 568, 473, negative 0.18, negative 16.73.

• Tamil Nadu, the corresponding values are 752, 747, 754, negative 0.66, 0.94.

• Telangana, the corresponding values are Not applicable, 7,707, 7,406, no data, negative 3.91.

• Tripura, the corresponding values are 1,126, 1,239, 1,246, 10.04, 0.56.

• Uttarakhand, the corresponding values are 482, 799, 895, 65.77, 12.02.

• Uttar Pradesh, the corresponding values are 703, 479, 464, negative 31.86, negative 3.13.

• West Bengal, the corresponding values are 3,958, 3,966, 3,964, 0.20, negative 0.05.

• Andaman and Nicobar Islands, the corresponding values are 0, 0, 0, 0, 0.

• Chandigarh, the corresponding values are 0, 0, 0, 0, 0.

• Dadra and Nagar Haveli, the corresponding values are 172, 169, 172, negative 1.74, 1.78.

• Daman and Diu, the corresponding values are 2 (Neg), 3 (Neg), 2 (Neg), 0, 0.

• Delhi, the corresponding values are 0, 0, 0, 0, 0.

• Lakshadweep, the corresponding values are 14, 23, 23, 64.29, 0.

• Puducherry, the corresponding values are 0, 0, 0, 0, 0.

• For the states in total, the corresponding values are 163,949, 182,207, 177,841, 11.14, negative 2.40.

Table 12.3 shows that in 2005–2006 and 2010–2011, there was a decline in the number of Adivasi operational holdings in Andhra Pradesh, Jammu and Kashmir, and Maharashtra. Similarly, in 2010–2011 and 2015–2016, there was a decline in seven states: Andhra Pradesh, Bihar, Gujarat, Maharashtra, Mizoram, Sikkim, Uttar Pradesh, and one union territory, Daman and Diu. The number of operational holdings is significantly less in smaller states and union territories such as Sikkim and Daman and Diu.

Table 12.4 demonstrates a decline in operational holdings in twelve states and one union territory in 2005–2006 and 2010–2011. Similarly, there was a decline in eighteen states in 2010–2011 and 2015–2016.

The statistics show a general negative trend in Adivasi land holdings that accelerated during 2015–2016. The average area of holdings has declined from 1.76 hectares in 2000–2001 to 1.64 hectares in 2005–2006 (Government of India, 2012, p. 44) and 1.40 hectares in 2015–2016 (Government of India, 2020, p. 49). The socio-economic and caste census in 2011 shows that 5.47 percent of rural Adivasi households were landless in India.Footnote ¹¹ In 2003, 35.5 percent of Adivasi households, against 41.6 percent of all households, did not own any land other than their homestead (Bakshi, Reference Bakshi2008, p. 101).Footnote ¹² The unit-level data from various rounds of the National Sample Survey Office (NSSO) shows that the Adivasi household that did not own any land, not even the homestead land, has increased from 16 percent in 1987–1988 to 24 percent in 2011–2012 (Karat & Rawal, Reference Karat and Rawal2014). The same data set indicates that Adivasi households that did not possess any land increased from 13 percent in 1987–1988 to 25 percent in 2011–2012. Similarly, landlessness among Adivasis has increased from 28 percent in 1987–1988 to 39 percent in 2011–2012 (Karat & Rawal, Reference Karat and Rawal2014). In short, landlessness among rural Adivasi households has increased over time, with alarming rates of tenure insecurity.

Dispossession and tenure insecurity were heightened during the COVID-19-imposed lockdown. In a report to the United Nation’s Special Rapporteur on the Rights of Indigenous Peoples, the Housing and Land Rights Network, New Delhi, claimed that between March and June 2020, both the Indian federal and state governments engaged in at least twenty-two cases of forced eviction of Adivasis without due process. Incidents in Odisha, Manipur, Gujarat, and Madhya Pradesh involved activities ranging from setting fire to Adivasi houses, to forcible eviction, destroying Adivasi standing crops, and using police force to quell Adivasi protests (Housing and Land Rights Network, 2020). Several other dispossession activities occurred during COVID-19 that Ambagudia (Reference Ambagudia2022b) argues undermines Adivasi land rights further, including the extension of mining leases and the approvals of major projects, many of which are on Adivasi lands.

The number of marginal land holdings among Adivasi communities has increased from 2.728 million in 1981–1982 to 7.127 million in 2015–2016 (Figure 12.1). A similar increasing trend is also visible in small and semi-medium land holdings; however, there is a gradual decline in the number of medium and large-scale land holdings held by Adivasis across India.

Figure 12.1 Number of operational holdings in India by size groups for STs, 1980–1981 to 2015–2016 (in ’000 ha)

Source: Government of India (2020, p. 50)

Figure 12.1Long description

The x-axis represents the time period, with data points for 1980-81, 1985-86, 1990-91, 1995-96, 2000-01, 2005-06, 2010-11, and 2015-16. The y-axis represents the number of operational holdings in thousands, ranging from 0 to 8000. There are five distinct lines on the graph, each representing a different size group of operational holdings for scheduled tribes or S T, as indicated by the legend. The data for the lines from top to bottom are as follows:

• Marginal holdings. The line rises steadily over the period. The corresponding data points are 2728, 3161, 3763, 4376, 4429, 5118, 6470, and 7127 thousand.

• Small holdings. The group shows an increasing trend, but at a slower rate. The corresponding data points are 1551, 1795, 2087, 2336, 2411, 2650, 2877, and 2972 thousand.

• Semi-medium holdings. The group has a relatively stable trend with some fluctuations. The corresponding data points are 1405, 1545, 1694, 1778, 1653, 1700, 1787, and 1771 thousand.

• Medium holdings. The group exhibits a declining trend. The corresponding data points are 936, 936, 943, 898, 783, 763, 760, and 704 thousand.

• Larger holdings. This group has the lowest number of operational holdings and shows a slight decline over time. The corresponding data points are 234, 212, 183, 135, 128, 112, 111, and 95 thousand.

Figure 12.2 examines the operational holdings of Adivasis in 1981–1982 and 2015–2016. It shows a sharp decline in medium and large-scale holdings, decreasing in size from 5.596 million hectares and 3.729 million hectares in 1980–1981 to 3.984 million hectares and 1.434 million hectares in 2015–2016, respectively. However, marginal, small, and semi-medium land holdings gradually increased, except for 2000–2001, 2005–2006, and 2015–2016 for semi-medium.

Figure 12.2 Area operated by holdings in India by size groups for STs, 1980–1981 to 2015–2016 (in ’000 ha)

Source: Government of India (2020: p. 51)

Figure 12.2Long description

The x-axis represents the time period, with data points for 1980-81, 1985-86, 1990-91, 1995-96, 2000-01, 2005-06, 2010-11, and 2015-16. The y-axis represents the area operated in thousands of hectares, ranging from 0 to 6000. Five distinct lines on the graph represent the area operated by different size groups of operational holdings for scheduled tribes, as indicated by the legend. The data for the lines from top to bottom are as follows:

• Medium holdings. This group shows a declining trend over the period. The corresponding data points are 5596, 5570, 5550, 5202, 4804, 4452, 4397, 4110, and 3984 thousand hectares. 1309, 1512, 1839, 2058, 2131, 2468, 3144, and 3413 thousand hectares.

• Semi-medium holdings. The trend is an overall increase with fluctuations. The corresponding data points are 3850, 4225, 4635, 4802, 4538, 4542, 4831, and 4752 thousand hectares.

• Large holdings. This group shows a declining trend. The corresponding data points are 3729, 3365, 2888, 2058, 1955, 1831, 1763, and 1434 thousand hectares.

• Small holdings. This group exhibits a steady increase. The corresponding data points are 2220, 2563, 2996, 3332, 3421, 3692, 4119, and 4202.

• Marginal holdings. This group exhibits a steady increase. The corresponding data points are 1309, 1512, 1839, 2131, 2159, 2468, 3144, and 3413 thousand hectares.

The comparative land picture paints Adivasis as at the margin of society and lagging behind other social groups, such as SCs and others (non-Adivasis and non-SCs) regarding the number of operational holdings (Figure 12.3). However, they are above the SCs concerning the area of operational holdings in 1985–1986 and 2015–2016 (Figure 12.4).

Figure 12.3 Number of operational holdings in India by social groups 1980–1981 to 2015–2016 (in %)

Source: Government of India (1998, p. 68; 1995–1996, pp. 59–61; 2012, p. 38; 2015: p. 47; 2020: p. 40) * Excluding Jharkhand

Figure 12.3Long description

The y-axis represents the number of holdings, ranging from 0 to 14000, while the x-axis lists the years in intervals, 1985-86, 1990-91, 1995-96, 2000-01, 2005-06, 2010-11, and 2015-16. Each bar for a given year is divided into segments by category:

• Scheduled castes, given by black bars, show a gradual increase across the given period.

• Scheduled tribes, given by light grey bars, rise steadily across the given period.

• Others, given by white bars, dominate in number across the given period.

• Institutional, given by dark grey bars, with the smallest share across the given period.

A table is provided below the vertical bar, with four rows representing the social groups, including scheduled castes, scheduled tribes, others, and institutional, and seven columns with the time period 1985-86, 19990-91, 1995-96, 2000-01, 2005-06, 2010-11, and 2015-16. The data in the table, from left to right, is filled as follows:

• For scheduled castes, the corresponding values are 12041, 13422, 14688, 15140, 16073, 17099, and 17341.

• For scheduled tribes, the corresponding values are 7648, 8670, 9524, 9404, 10343, 12005, and 12669.

• For others, the corresponding values are 77466, 84545, 91368, 95114, 102550, 109006, and 116180.

• For institutional, the corresponding values are not available till the period 1995-96. The remaining values are 272, 256, 239, and 264.

Figure 12.4 Area operated by social groups 1980–1981 to 2015–2016 (in ’000 ha)

Source: Government of India (1998, p. 68; 1995–1996, pp. 59–61; 2012, p. 38; 2015, p. 47; 2020, p. 40) * Excluding Jharkhand

Figure 12.4Long description

The graph’s y-axis represents the land area in thousands of hectares, ranging from 0 to 160000, while the x-axis lists the years in intervals, 1985-86, 1990-91, 1995-96, 2000-01, 2005-06, 2010-11, and 2015-16. Each bar for a given year is divided into segments by category. The data are as follows.

• Scheduled castes show a gradual increase across the given period.

• Scheduled tribes rise steadily and then decline across the given period.

• Others show a gradual, steady decline in number across the given period.

• Institutional, with the smallest share, also has a decline across the given period.

A table is provided below the vertical bar, with four rows representing the social groups, including scheduled castes, scheduled tribes, others, and institutional, and seven columns with the time period 1985-86, 19990-91, 1995-96, 2000-01, 2005-06, 2010-11, and 2015-16. The data in the table, from left to right, is as follows:

• For scheduled castes, the corresponding values are 12639, 13173, 13407, 13077, 13300, 13721, and 13481.

• For scheduled tribes, the corresponding values are 17234, 17909, 17524, 16525, 16929, 18221, and 17784.

• For others, the corresponding values are 134689, 134425, 132424, 128027, 126399, 126108, and 125012.

• For institutional, the corresponding values are not available till the period 1995-96. The remaining values are 1807, 1694, 1542, and 1540.

Five Dispossession Pathways

Figure 12.5 shows the nature and scale of Adivasi land dispossession and alienation in post-independence India, which occurs broadly in five different ways.

Figure 12.5 Process of Adivasi land alienation

Source: Kumar and Choudhary (Reference Kumar and Choudhary2005, p. 38)

Figure 12.5Long description

The flowchart begins with the text, typologies of process, which have constrained and reduced access to land for Adivasis, at the top, inside a box. The main categories of these processes are presented in five rectangular boxes at the top, from left to right.

1. The box on the left labeled, loss of land through private transactions, is connected to a box with an arrow. The box contains the following data, numbered 1 to 5.

• Land mortgaging

• Sale of land after permission

• Illegal sale of land

• Encroachment by non-Adivasis

• Loss of land before survey and settlement

2. The box labeled, land alienation through displacement is connected by an arrow to a box below. This includes the data numbered 6 to 7.

• Loss of land patta through land acquisition

• Loss of government land cultivated by the displaced

3. The box in the middle, labeled, loss of land through survey and settlements, is connected to a box below through an arrow. The data are numbered 1 to 3 and are as follows:

• Permanent cultivation land categorised as government land

• Shifting cultivation land categorised as state-owned land

• Un-surveyed areas

4. The text, landlessness, is labeled inside the fourth box. This is connected to a box below which include the following data:

• Poor distribution of government wastelands

5. The box on the right is labeled, notification of forests. An arrow connects to a box filled with data given below.

• Encroachments eligible for regularization but not regularized

• Forest land where proper settlement has not taken place

• Poor settlements of rights during reservation

• Shifting cultivation areas categorized as forests

First, land is alienated in private transactions, such as Adivasis mortgaging their lands to non-Adivasis to meet their basic needs, perform rituals and religious ceremonies, celebrate festivals, or meet the expenditure of a daughter’s marriage (among other reasons), which sometimes leads to the illegal transfer of land. Until the 1950s and 1960s, non-Adivasis could purchase Adivasi lands with permission from relevant authorities. In some cases, records and permissions were manipulated to acquire Adivasi lands (Government of India, 2014). In some states, Adivasi communities also seek permission to sell land to non-Adivasi communities. For instance, in Tripura, seventy-four cases were submitted to and approved by the Tribes Advisory Council (TAC) in 2006–2007 and 2015–2016, transferring 52.2956 acres of Adivasi lands (Centre for Equity Studies, 2016). Adivasi communities also suffer land loss due to encroachment of their land by non-Adivasis (Ambagudia, Reference Ambagudia2019; Buckles et al., Reference Buckles, Khedkar, Ghevde and Patil2013; Viegas, Reference Viegas1991).

Second, the state acquires land for public purposes (such as development projects, highways, railways, and even conservation) through the “eminent domain principle” under the Land Acquisition Act 1895 (Levien, Reference Levien2015). On March 19, 2015, the government informed the Lok Sabha that 15,363 hectares of Adivasi lands were acquired for power plants, affecting 2,133 Adivasi families.Footnote ¹³ Similarly, Coal India Limited acquired 691 hectares of Adivasi lands in 2014–5; 990 hectares in 2015–6; 1,332 acres in 2016–7; and 884 acres in 2017–8 (till February 2018).Footnote ¹⁴ The state also acquires Adivasi lands to rehabilitate migrants in various parts of Adivasi territories in India (Ambagudia, Reference Ambagudia2019; Government of India, 2014; Singh, Reference Singh2010).

Third, surveys and settlements of Adivasi areas in eastern India were delayed until the 1960s, allowing lands to be transferred to non-Adivasis. Sometimes, due to flawed surveys, most of the land in Adivasi areas was registered as government land, and correspondingly, the privately owned land was significantly less (Ambagudia, Reference Ambagudia2019; Government of India, 2014).

Fourth, the continuation of landlessness among the Adivasi communities is due to the poor distribution of government wastelands, land acquired through land ceilings, and the FRA (among others).

Fifth, the Adivasi communities’ access to land also gets reduced due to areas being designated forests or protected areas, which limits access for traditional uses.

As Figure 12.5 outlines, the state not only dispossesses Adivasis in the name of “national development” but also facilitates the transfer of land and forest resources to non-Adivasis and multinational corporations (MNCs). While the government does not assess the socio-economic outcomes of Adivasis following land acquisition,Footnote ¹⁵ it is clear that dispossession is a major driver of poverty and inequality among Adivasis. This issue, in turn, has mobilized Adivasi resistance and social movements.

Strategies for Protecting Adivasi Land Rights

Adivasis have employed various strategies to advance and protect their land rights across India. These strategies range from working with non-governmental organizations (NGOs) to launching social movements and pursuing land justice through the courts. The Adivasi educated class has been meeting and putting pressure on their political representatives to raise questions on Adivasi land rights in decision-making bodies such as the Parliament and state assemblies. However, the two most prominent strategies are Adivasi social movements and litigation.

Litigation

The Adivasis of India also resort to litigation to advance and safeguard their land rights. Sometimes they take individual initiatives to file cases in the court, and other times various organizations mobilize and file cases on behalf of Adivasis in the courts for restoring the alienated land. The Adivasis usually arrange financial resources required for fighting cases in cash or in-kind (crops) if the organizations are involved. Table 12.5 shows 437,173 cases covering 661,806 acres of unlawfully alienated land were filed in the courts; of these, 360,590 cases were decided, and 217,396 (60.28 percent) cases were decided in favor of Adivasi communities (covering 412,865 acres). However, all decided lands were not restored.

Table 12.5Statewise information on alienation and restoration of tribal lands (area in acres)

NA = No Availability Source: Lok Sabha Unstarred Question No. 6693, dated May 17, 2012, available at http://164.100.47.193/Annexture_New/lsq15/10/au6693.html.

Table 12.5Long description

A table gives the statewide information on the alienation and restoration of tribal lands. It has 5 main columns namely, state, cases filed in court, cases disposed of by the court, cases decided in favor of Adivasi, and cases in which land was restored to Adivasis, from left to right in order. Columns 2 to 5 have 2 sub-columns each namely, the number and area in acres of tribal lands for each of the case categories. Below are the state-wise data

1. 1. Below are the state-wise data for the cases filed in court by number and area, in order.

   • For Andhra Pradesh, the corresponding values are 65875, 287776.

   • For Assam, the corresponding values are 2042, 4211.

   • For Bihar, the corresponding values are 86291, 104893.

   • For Chhattisgarh, the corresponding values are 49138, Not applicable.

   • For Gujarat, the corresponding values are 20847, 76612.

   • For Himachal Pradesh, the corresponding values are 2, 21.

   • For Jharkhand, the corresponding values are 5382, 4002.

   • For Karnataka, the corresponding values are 10686, 40189.

   • For Madhya Pradesh, the corresponding values are 13440, 8997.

   • For Maharashtra, the corresponding values are 45634, Not applicable.

   • For Odisha, the corresponding values are 107798, 106530.

   • For Rajasthan, the corresponding values are 886, 3099.

   • For Tripura, the corresponding values are 29152, 25476.

   • For Total, the corresponding values are 437173, 661806.

2. 2. Below are the state-wise date for the cases disposed of by the court by number and area in order.

   • For Andhra Pradesh, the corresponding values are 58212, 256452.

   • For Assam, the corresponding values are 50, 19.

   • For Bihar, the corresponding values are 76518, 95151.

   • For Chhattisgarh, the corresponding values are 21290, 13440.

   • For Gujarat, the corresponding values are 20044, 74053.

   • For Himachal Pradesh, the corresponding values are 0, 0.

   • For Jharkhand, the corresponding values are 1362, Not applicable.

   • For Karnataka, the corresponding values are 10222, 37457.

   • For Madhya Pradesh, the corresponding values are 11705, 8429.

   • For Maharashtra, the corresponding values are 44624, 99486.

   • For Odisha, the corresponding values are 107190, 105840.

   • For Rajasthan, the corresponding values are 285, 176.

   • For Tripura, the corresponding values are 9088, 7368.

   • For Total, the corresponding values are 360590, 697871.

3. 3. Below are the state-wise data of the cases decided in favor of Adivasis by number and area in order.

   • For Andhra Pradesh, the corresponding values are 26475, 106225.

   • For Assam, the corresponding values are 50, 19.

   • For Bihar, the corresponding values are 44634, 45421.

   • For Chhattisgarh, the corresponding values are 21202, Not applicable.

   • For Gujarat, the corresponding values are 19522, 72666.

   • For Himachal Pradesh, the corresponding values are 0, 0.

   • For Jharkhand, the corresponding values are 1079, 860.

   • For Karnataka, the corresponding values are 4544, 16234.

   • For Madhya Pradesh, the corresponding values are 7721, 6277.

   • For Maharashtra, the corresponding values are 19943, 99486.

   • For Odisha, the corresponding values are 62943, 57891.

   • For Rajasthan, the corresponding values are 195, 418.

   • For Tripura, the corresponding values are 9088, 7368.

   • For Total, the corresponding values are 217396, 412865.

4. 4. Below are the state-wise data on cases in which land was restored to Adivasis by number and area in order.

   • For Andhra Pradesh, the corresponding values are 23383, 94312.

   • For Assam, the corresponding values are 50, 19.

   • For Bihar, the corresponding values are 44634, 45421.

   • For Chhattisgarh, the corresponding values are 13364, NA.

   • For Gujarat, the corresponding values are 363, 1919.

   • For Himachal Pradesh, the corresponding values are 0, 0.

   • For Jharkhand, the corresponding values are 1079, 860.

   • For Karnataka, the corresponding values are 4490, 16127.

   • For Madhya Pradesh, the corresponding values are 8738, 8300.

   • For Maharashtra, the corresponding values are 19943, 99486.

   • For Odisha, the corresponding values are 61257, 57013.

   • For Rajasthan, the corresponding values are 195, 417.

   • For Tripura, the corresponding values are 8994, 7318.

   • For Total, the corresponding values are 186490, 331192.

The highest number of cases were filed in Odisha (107,798), followed by Bihar (86,291) (Table 12.5). Similarly, Andhra Pradesh witnessed the highest amount of Adivasi land alienation (287,776 acres), followed by Odisha (106,530 acres). On September 6, 2012, the government informed the Lok Sabha that 4.37 lakh cases, covering 6.61 lakh acres of Adivasi land alienation had been registered, out of which 2.17 lakh cases have been legally disposed of in favor of the Adivasis that covered 4.12 lakh acres.Footnote ¹⁷ However, the overall progress of the restoration of alienated Adivasi land was unsatisfactory, with the Committee on State Agrarian Relations and the Unfinished Task in Land Reforms arguing the dismal progress was because the “Courts, bureaucrats and mostly public men, are often formidably interlocked against the Adivasis” (Government of India, 2009, p. 37).

Examining the various interim orders and judgements of Samatha vs State of Andhra Pradesh & Ors (Samatha Judgment), Narmada Bachao Andolon vs Union of India & Ors (Narmada Bachao Andolan case), T. N. Godavaraman Thirumulpad vs Union of India and Ors (Niyamgiri Judgment) and February 2019 judicial Order on the FRA (FRA case), Ambagudia (Reference Ambagudia, Linkenbach and Verma2022a) contends that the judiciary has maintained an inconsistency around Adivasi land rights. In the Samatha case, the Supreme Court considered whether the state is a “person” under Section 3(1)(a) of the Andhra Pradesh Scheduled Areas Land Transfer Regulation 1959 (Regulation 1 of 1959) and whether it could lease out land in Scheduled Areas to mining companies. Samata, an NGO, challenged the Andhra Pradesh High Court’s decision to reject the state “as a person” and uphold the mining lease in the Visakhapatnam district Scheduled Areas.Footnote ¹⁸ On appeal, the Supreme Court considered the state a person and ruled that the mining lease to non-Adivasi in Scheduled Areas was invalid. The federal and state governments attempted to dilute this judgment and tried to amend the Fifth Schedule to ease the legal blockade created by the Samatha judgment for leasing Scheduled Area lands to non-tribal entities (Ambagudia, Reference Ambagudia, Linkenbach and Verma2022a).

Similarly, when the Supreme Court delivered the Niyamgiri judgement in favor of Adivasi communities on April 18, 2013, the Odisha Mining Corporation Limited again approached the Supreme Court in 2016 to reopen the case and reconvene the twelve Gram Sabhas that had rejected the bauxite mining in Niyamgiri in 2013 (Ambagudia, Reference Ambagudia, Linkenbach and Verma2022a).

In the Narmada Bachao Andolan case, the Narmada Bacho Andolan launched a social movement (consisting of native Adivasis, farmers, environmentalists and social activists) against the Sardar Sarovar Dam Project on the Narmada River in western India, which would displace the Adivasis living in the region. The Supreme Court has delivered mixed judgments, with the end result being project approval and Adivasi displacement. In the FRA case, when the Supreme Court further heard the matter on February 13, 2019, the executive (central government) did not send its law officer to defend the central law, FRA, and the Supreme Court ordered the eviction of the rejected claimants of Adivasis and other forest dwellers from the forest land by July 24, 2019 (Ambagudia, Reference Ambagudia, Linkenbach and Verma2022a). However, the judicial order has been put on hold due to pressure from the Adivasis and Adivasi rights activists, as due process was not followed while rejecting the claims. In short, while these institutions are expected to protect and promote Adivasi land rights, they have often worked to undermine Adivasi land rights.

Conclusions and Recommendations

Due to an implementation gap – where the executive, legislature, and courts work at odds to Adivasi land justice – the comprehensive constitutional and statutory measures for Adivasi land rights, at federal and state levels, have neither advanced nor safeguarded these rights. Indeed, what this chapter shows is that over the last decades, the Adivasi land base has been eroded, and landlessness and the poverty that comes with it is now a persistent problem for Adivasis across India.

The dispossession and deprivation of Adivasis have led to conflicts over land and natural resources between the Adivasis and other actors such as the state, MNCs, and non-Adivasi communities in different parts of the country. The need of the day is to take a series of robust measures to strengthen and advance Adivasi land rights. Six steps are critical to strengthening Adivasi land rights.

First, the existing legislative frameworks for Adivasi land rights must be implemented with sincerity and commitment across the country. In addition, existing land laws must also be independently assessed, based on their effectiveness, and any changes must be made if necessary.

Second, institutions such as the legislature, executive, and judiciary should be sensitive while dealing with the Adivasi land issues. Any oversight would lead to the dispossession of Adivasi lands. Any attempt to dilute the relationship between the Adivasis and land would only incite resistance on an unprecedented scale.

Third, as outlined in Table 12.5, several Adivasi land cases are yet to be disposed of. In this context, special courts must be set up to dispose Adivasi land rights cases in a timely manner.

Fourth, Sixth Schedule Areas are relatively less prone to Adivasi land alienation due to the legislative power of the Autonomous District Councils of Adivasis to make laws on land relations. On the contrary, state governments enact laws governing the Adivasi land in Fifth Schedule Areas with, of course, less sensitivity towards Adivasi land rights. In this context, enacting similar provisions of Sixth Schedule Areas in Fifth Schedule Areas would advance and safeguard the Adivasi land rights in India.

Fifth, building on the Adivasi land-based data, institutional mechanisms should be established such as independent monitoring agencies to regulate the Adivasi land relations with the federal and state governments and their sub-units. The monitoring agencies could collect data on various dynamics of Adivasi land. They could examine and (dis)approve the acquisition of Adivasi land. They could also examine the state governments’ move to dilute the legislation to protect and promote Adivasi land rights.Footnote ¹⁹

Sixth, support for Adivasi leaders must be enabled to build a robust Adivasi land movement, collaborating with civil society organizations in ways that strengthen and advance Adivasi land rights. The involvement of civil society organizations in the past has proved beneficial for Adivasis, especially in reference to PESA and FRA.

Looking ahead, further research could examine the success stories and the failures for Adivasi land rights – it is important to share what is working, and what is not, to guide land justice across India.

Introduction

Malaysia’s Indigenous Peoples share a common experience of discrimination and a systematic dispossession of their lands. Like other jurisdictions, the predicament in Malaysia can be attributed to a persistent lack of respect, recognition, protection, and priority for Indigenous lands (SUHAKAM, 2013). Despite commonalities among Malaysia’s Indigenous Peoples from a land rights perspective, their experience is somewhat distinctive due to the different rights, privileges, and treatment afforded to each under the law and derived from their local circumstances.

Exploring the nuances of the legal context in Malaysia, this chapter begins by identifying “Indigenous Peoples” and their diverse traditional land tenure systems, and then examines the constitutional categorization of, and differences between, the Peninsular Malaysia Orang Asli and the natives of Sabah and of Sarawak. After surveying their respective statutory land and resource laws and policies, this analysis examines the strategy of litigation of Indigenous customary land rights through the Malaysian courts. This chapter then explores opportunities for the inclusion of Malaysia’s Indigenous Peoples in connection with international conservation commitments, followed by concluding observations on the legal protections and recognition of Indigenous land rights.

Indigenous Peoples in Malaysia

Broadly, the Federation of Malaysia comprises the peninsular land separating the Straits of Malacca from the South China Sea and most of the northern quarter of the island of Borneo. Peninsular Malaysia has eleven states and two federal territories, formerly known as the Federation of Malaya. The Borneo territories are made up of the states of Sabah and Sarawak, and a federal territory.

Prior to the formation of Malaysia in 1963, the Federation of Malaya, Sabah (previously North Borneo), and Sarawak were three separate states. The Federation of Malaya gained independence from the British in 1957, while Sabah and Sarawak remained under British rule until the Malaysia Agreement 1963, where Sabah, Sarawak, and the self-governing British colony of Singapore combined with the Federation of Malaya to form the Federation of Malaysia. Singapore left the Federation in 1965.

The 1957 Federation of Malaya Constitution, the foundation for the Malaysian Constitution, contained provisions granting distinct special privileges to two ethnic groups, namely the Malays and the Aborigines of the Malay peninsula (also known as the Orang Asli), including quota reservations and, more pertinently, rights and privileges relating to land. Ethnic Malays were granted these special privileges following a complex compromise between the interests of the major ethnic groups in Malaya immediately prior to independence from British rule. The groups mainly involved the politically and numerically stronger Malays, whose earlier settlement and kingdoms in the Malay Peninsula had been recognized by the colonial government, and the immigrant ethnic Chinese, Indians, and other groups, many of whom were vying for entrenched citizenship rights in an independent Malaya. The relatively superior political position of the Malays ensured that two important aspects of the compromise were: (i) Malay demands for the maintenance and protection of their culture, religion, and lands and (ii) their prevailing socio-economic disadvantages compared to the Chinese and the Indians (Fernando, Reference Fernando2002). In contrast, the Orang Asli as the “first peoples” of the Malay peninsula, who numbered less than 0.5 percent of the population and were considered “backward” and economically insignificant, played no part in this constitutional compromise (Subramaniam, Reference Subramaniam2013). As will be observed, they were nonetheless ascribed limited constitutional protections under government stewardship.

Subsequently, Annex A of the Malaysia Agreement 1963 provided for constitutional amendments to the Federation of Malaya Constitution, legally facilitating Malaysia’s formation. One of the conditions of Sabah and Sarawak joining the Federation of Malaysia was the granting of special privileges to natives (anak negeri) of Sabah and Sarawak tailored to the local circumstances and political demands of both states.Footnote ¹ The Malays,Footnote ² natives of Sabah,Footnote ³ natives of Sarawak,Footnote ⁴ and Orang Asli,Footnote ⁵ were thus afforded varying degrees of constitutional rights and privileges due to legal arrangements for the protection of those considered as “indigenous” or “native” during the decolonization process. Ethnic Malays account for almost 58 percent of Malaysia’s citizenry of 30.4 million, while the Orang Asli, natives of Sabah and natives of Sarawak collectively amount to 12.2 percent of the population (Department of Statistics Malaysia, 2023). The Malays are politically dominant at the federal level and state levels within Peninsular Malaysia, whereas the heterogenous native groups of Sabah and Sarawak have political control over their respective states. Peninsular Malaysia Orang Asli, whose eighteen official sub-ethnic groups only account for 0.7 percent of the population, are politically weak, and are among the most marginalized and impoverished groups in Malaysia (Nicholas, Reference Nicholas and Mamo2020, p. 284).

Although the term “Indigenous Peoples” is not contained in the Federal Constitution, the natives of Sabah and Sarawak and Peninsular Malaysia Orang Asli have collectively self-identified as Orang Asal (Indigenous Peoples) (Nicholas, Reference Nicholas and Mamo2020, p. 283) at international human rights fora and domestically. The Human Rights Commission of Malaysia (SUHAKAM, 2013) considers these groups to meet international criteria for “Indigenous Peoples” under the various international human rights documents, as they are the earliest inhabitants of their respective lands and collectively a non-dominant and marginalized group within Malaysia that has voluntarily perpetuated a cultural distinctiveness compared to the dominant sections of society. Statistically, the Malaysian government considers all three groups and the Peninsular Malaysia Malays as bumiputera (translated literally, princes of the soil) (Department of Statistics Malaysia, 2023).

Political and historical narratives consider ethnic Malays as deserving of a special legal position through constitutional privileges and government policies on the basis that their ancestors, who arrived after the Orang Asli, had established kingdoms in the Malay peninsula that were recognized as sovereign by British colonizers (Dentan et al., Reference Dentan, Endicott, Gomes and Hooker1997; Idrus, Reference Idrus2008; Nicholas, Reference Nicholas2000). However, the politically and socially dominant Malays have not been identified as “Indigenous Peoples” at international Indigenous rights fora, and perhaps more importantly, do not possess specific communal connections to lands, a feature common to Indigenous Peoples worldwide (Nicholas et al., Reference Nicholas, Engi and Teh2010). In comparison, many Orang Asli and Sabah and Sarawak native communities have struggled to maintain the inextricable political, social, economic, and cultural links they possess with their respective customary territories. This connection supports their traditional livelihoods, and perhaps more critically, defines their culture, identity, and wellbeing.Footnote ⁶

As such, SUHAKAM has viewed “the mainstream, not minority” Malays as not within the terms of its inquiries into Indigenous Peoples’ land rights in Malaysia (SUHAKAM, 2013). This chapter adopts SUHAKAM’s opinion and focuses on the customary territorial rights of the Orang Asli and the natives of Sabah and Sarawak. Nonetheless, certain Malay legal privileges are examined to highlight the disparity of rights afforded to the other Indigenous groups and, in particular, the Orang Asli.

Indigenous Land Tenure Systems in Malaysia: Diversity, Flexibility, and Susceptibility to Dispossession

Collectively, the natives of Sabah, the natives of Sarawak, and Peninsular Malaysia Orang Asli have been categorized into at least eighty-four different ethnic and sub-ethnic groups: thirty-nine, twenty-seven, and eighteen heterogenous groups, respectively (Nicholas, Reference Nicholas and Mamo2023, p. 238). Through oral traditions and the domestic practice of customs and usages, these groups have developed rich, complex, and diverse land and territorial customs shaped by their geographical locales and traditional connections to these spaces.

Depending on the geographical location and cultural predisposition of each group, traditional activities include farming, orchard cultivation, hunting, fishing, and the gathering and use of produce from forests, waters, or tidal estuaries. Increased encroachment and loss of traditional lands, interaction with outsiders and state intervention have modified local customs, activities, and spatial areas but customary laws continue to observed, at least for communities that still inhabit their traditional areas.

For those communities that are traditionally engaged in more settled activities and do not inhabit coastal, urban or developed areas, there are some basic commonalities in respect of areas that they consider customary territories. Broadly, a customary territory for these groups is a specific and naturally defined area that would comprise settlements, cleared and cultivated areas, orchards, old settlement and cultivated areas, cemeteries, sacred and ceremonial sites, and forested areas for hunting and the collection of produce. Within this area there would be a combination of individual, communal, and non-exclusive customary interests that are managed by the community in accordance with customary laws. Examples of such customary land arrangements can be found among the Semai and Temiar (Peninsular Malaysia), Iban and Bidayuh (Sarawak), and Dusun and Murut (Sabah) (SUHAKAM, 2013).

Less sedentary Indigenous groups also possess distinctive concepts of defined territoriality and connections in respect of their customary areas. For example, the Seletar Orang Asli of Peninsular Malaysia assume custodianship of sea and coastal fringes and mangroves traditionally inhabited by them and regard such areas (within their defined boundaries) as their traditional territory and resources (SUHAKAM, 2013). Groups that are regarded as semi-nomadic such as the Batek Orang Asli of Peninsular Malaysia and the Penan of Sarawak have naturally defined traditional territories marked out by landscape features and customs relating to resource use and other cultural and spiritual connections within these areas (Bulan & Maran, Reference Bulan and Maran2020; SUHAKAM, 2013).

These informal, decentralized, and flexible systems of territoriality provided opportunities for subsequent waves of migrants, settlers, and incoming powers to claim these lands, having viewed large portions of Indigenous customary territories as unsettled, unutilized, and fit for domination. The most profound of these interventions was the imposition of English property law systems to regulate land and resource use by British colonisers in the nineteenth and early twentieth centuries (Bulan & Maran, Reference Bulan and Maran2020; Doolittle, Reference Doolittle2005; Subramaniam & Endicott, Reference Subramaniam and Endicott2020; SUHAKAM, 2013). These foreign systems facilitated the “legal” dispossession of Indigenous Peoples by ignoring Indigenous concepts of territoriality, and sanctioning the exploitation of natural resources and the expansion of commercial activities into Indigenous customary territories. These systems form the basis of prevailing domestic laws governing lands and resources in Malaysia. The following sections detail the Malaysian legal framework and the treatment of distinct Indigenous Peoples and their customary rights to lands, territories, and resources.

Constitutional Privileges for Indigenous Peoples and their Lands: State-Centric Recognition

Malaysia is a constitutional monarchy that functions through a localized Westminster parliamentary system. The Malaysian legal system incorporates elements of local customs and Syariah Islamic principles into its common law system that have been modified and adapted to local circumstances through written laws and judicial pronouncements. As defined in Article 160(2) of the Malaysian Constitution, “law includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof.”

Due to their dissimilar histories and circumstances prior to Malaysia’s formation, the Malaysian Constitution affords differing levels of special rights and privileges to the Malays, Orang Asli, natives of Sabah, and natives of Sarawak. Article 153 of the Malaysian Constitution expressly obliges the Yang Dipertuan AgongFootnote ⁷ to safeguard the “special position of the Malays and natives of any of the States of Sabah and Sarawak.” This special position includes reservations of positions in the public service, scholarships, and other educational and training privileges and licenses for the operation of any trade or business (Article 153(2)).

Malays and natives of Sabah and Sarawak (Articles 76(2) and 150(6A)) have constitutional protection against laws that may impact their own respective laws and customs.Footnote ⁸ In respect of land, Malay reservations created in Peninsular Malaysia immediately before independence in 1957 are protected unless a law to the contrary is passed by a two-thirds majority in the relevant state legislature and both houses of the federal parliament (Article 89(1)). Article 90 also provides for the special protection of Malay customary lands in certain states of Peninsular Malaysia.

As for native lands in Sabah and Sarawak, Article 161A(5) of the federal Constitution permits any state law for the “reservation of land … or for alienation” to natives of Sabah and Sarawak or “for giving them preferential treatment as regards the alienation of land by the State.” Generally, land matters fall within the exclusive jurisdiction of the state governments (Ninth Schedule List II Item 1) while List IIA of the Ninth Schedule of the federal constitution provides additional jurisdiction to the Sabah and Sarawak state governments over local native law and custom. In other words, the states of Sabah and Sarawak possess a high degree of legal autonomy to regulate the recognition of their respective Indigenous customary land rights. Nonetheless, these broad constitutional powers enable both state governments to subordinate the enforceability of any native customs in relation to land in favor of their respective land and resource utilization priorities.

In Peninsular Malaysia, Malays, who by constitutional definition must profess the religion of Islam,Footnote ⁹ have constitutional protections in respect of their religion, which is also the official religion of Malaysia (Articles 3(1)).Footnote ¹⁰ The federal constitution has maintained the precedence and sovereignty of the Malay customary rulers of Peninsular Malay states to a considerable extent (Articles 70 and 181). The Malay language is the national language (Article 152).

In contrast, Peninsular Malaysia Orang Asli do not enjoy equivalent constitutional rights but instead are dependent on the federal government for their welfare. Item 16 of the Ninth Schedule List I of the Malaysian Constitution specifically empowers the federal government to legislate for Orang Asli welfare.Footnote ¹¹ Article 8(5)(c) permits laws “for the protection, well-being or advancement” of Orang Asli “including, the reservation of land” or the “reservation to Orang Asli of a reasonable proportion of suitable positions in the public service” without offending the constitutional equality provision contained in Article 8(1). Despite enabling positive discrimination, these constitutional provisions leave the protection of the Orang Asli and their traditional lands in the hands of the federal government and the individual state governments, the latter having jurisdiction over land matters.

The special constitutional rights and privileges afforded in Malaysia are arguably hierarchical, with the Malays possessing the strongest and widest form of protections. Broadly, natives of Sabah and Sarawak possess comparable constitutional rights and privileges in relation to their lands and customs. However, the legal power and jurisdiction over the recognition of such rights and privileges, including those relating to domestic Indigenous land customs and their enforceability, lie with the state governments of Sabah and Sarawak. In comparison, the Orang Asli possess constitutional protections that do not explicitly encompass their languages, laws, traditions, customs, and institutions, and with respect to lands and other privileges are dependent on government discretion.

There are historical reasons for the apparent constitutional anomaly between the Malays and the Orang Asli. Despite the Orang Asli being descendants of the earliest inhabitants of the Malay Peninsula and their relative independence from the Malay rulers (Carey, Reference Carey1976; Clifford, Reference Clifford1897; Dentan et al., Reference Dentan, Endicott, Gomes and Hooker1997), they were deemed non-sovereign dependents of the Malay rulers by the British colonial rulers (Noone, Reference Noone1936; Sullivan, Reference Sullivan, Magallanes and Hollick1998). The diverse tribal lifestyles of the minority Orang Asli groups, which were considered lower on the scale of social organization compared to the Malays and backward (Nah, Reference Nah2004; Wilkinson, Reference Wilkinson1923), culminated in legal protections that were paternalistic, and designed for persons incapable of self-determination and destined for integration with the dominant Malay population (Subramaniam, Reference Subramaniam2011).

Notwithstanding better levels of constitutional protection and their state governments enjoying a higher level of autonomy, local native communities in Sabah and Sarawak share a long history of dispossession of their customary territories with the Orang Asli, a dilemma exacerbated by their continued lack of security of tenure over these areas (SUHAKAM, 2013). Increased demand for lands and resources for economic growth have caused acute encroachment and appropriation of the remaining areas traditionally inhabited by Indigenous communities (Carling & Godio, Reference Carling, Godio and Jacquelin-Andersen2018; Open Society Justice Initiative, 2017; SUHAKAM, 2013).

Statutory Land Rights: State Curtailment of Indigenous Territorial Space

Statutory land rights for Malaysia’s Indigenous Peoples are broadly divided into two levels of legal recognition, a “lower” level and a “higher” level. At a “lower” level, Peninsular Malaysia Orang Asli have limited rights and privileges in respect of “inhabited” lands and resources “used” by them, dependent on land reservations or subsistence privileges granted by the state government. However, they do not enjoy express statutory recognition of their respective customary land arrangements. At a “higher” level, the natives of Sabah and Sarawak possess limited rights to their customary lands and resources as defined and determined by their respective state laws.

As will be observed in the ensuing subsections, both forms of statutory recognition could also be viewed as a barrier to the effective protection of Indigenous lands, territories, and resources as they have facilitated the “legal” dispossession of Indigenous traditional areas.

Indigenous Peoples’ Rights in Malaysia and in the Courts

Indigenous rights advocacy dates from the 1980s, involving engagement with the government and broader civil society, articulation and presentation of demands, media coverage and public awareness initiatives, civil disobedience, and peaceful protests (Open Society Justice Initiative, 2017). The failure of these initiatives to yield their desired outcomes, and increased land encroachment due to rapid land clearing and development, led Malaysia’s Indigenous Peoples to employ the strategy of taking their land and resource grievances to the courts. In this regard, they have enjoyed some success through a liberal judicial interpretation of the law, and the domestic application of common law principles. However, the strategy of litigating Indigenous land rights has limitations, both doctrinally and practically. This section examines the basic principles recognized by the Malaysian courts and the challenges of relying on the court process to deliver justice for indigenous land issues.

Limitations to Recognition through the Courts

Despite these positive outcomes, recognition of Indigenous land rights solely through the judicial arm of the Malaysian government has its own issues. This section examines the limits of the judicial system in terms of the court process, substantive law, and broader observations on judicial development of the law.

Many Indigenous Peoples in Malaysia cannot afford to institute and sustain the protracted trial and appeal process to defend their traditional lands (Open Society Justice Initiative, 2017). Conversely, their opponents are usually state actors and commercial enterprises that possess ample financial resources, and also importantly, the persistent will to contest claims involving Indigenous lands and resources. Also, organizing community participation, decision-making, and unity throughout the litigation process, ranging from evidence gathering to support a claim to trusteeship matters relating to the benefits from litigation, poses significant problems for communal litigants (Open Society Justice Initiative, 2017). Further, a successful case does not necessarily mean an immediate remedy. For example, the Temuan-Orang Asli claimants in the Sagong bin Tasi caseFootnote ³⁹ endured twelve years of litigation, including appeals, before they received compensation for the loss of their customary lands acquired for highway construction.

The formal setting and adversarial nature of court proceedings are arguably at odds with Indigenous perspectives on dispute resolution, which are relatively less formal and more participatory (Subramaniam & Nicholas, Reference Subramaniam and Nicholas2018, p. 72). Language barriers, cultural, and epistemological differences, and unfamiliarity with court processes put many Indigenous witnesses at a tactical disadvantage compared to other witnesses (Nah, Reference Nah2008; Subramaniam & Nicholas, Reference Subramaniam and Nicholas2018). The issue of evidential burden defeating Indigenous land rights claims in commonwealth jurisdictions (McHugh, Reference McHugh2011) persists in Malaysia. While the Malaysian courts have adopted a “realistic” approach to evaluating evidence in Indigenous land rights claims, taking cognizance of the reliance on oral traditions and the impediments in producing surveyed maps and official documentation,Footnote ⁴⁰ judicial circumspection towards “self-serving” testimonies of Indigenous litigantsFootnote ⁴¹ suggests that proof of a case would ultimately depend on the idiosyncrasies of a particular judge. The community’s lack of financial resources to engage appropriate expert witnesses to provide corroborative evidence to a claim, and the want of experienced expert witnesses, is an additional obstacle for Indigenous litigants.

The uncertainties inherent in the litigation process transcend procedural law into the substantive jurisprudence on Indigenous land rights (Subramaniam & Nicholas, Reference Subramaniam and Nicholas2018). More recently, the latter area has seen judicial limits placed on the recognition of Indigenous rights to lands and resources in Malaysia. Common law NCR land rights have been severely restricted, particularly in the states of Sarawak and Sabah.

In the 2016 decision of Director of Forest, Sarawak v TR Sandah Tabau (TR Sandah FC),Footnote ⁴² the Federal Court determined by a majority that the common law recognition of NCR in Sarawak or, specifically, Iban customary rights, did not extend to the broader native customary territory (pemakai menoa) and forest reserved for food and forest produce (pulau). The primary reason was that these customs were not contained in any of the legislation and executive orders in Sarawak. This ruling goes against previous decisions that common law NCR are not dependent on legislation and executive ordersFootnote ⁴³ without adequately addressing them (Subramaniam, Reference Subramaniam, Harding and Shah2018). Notwithstanding the problematic reasoning, the majority decision in TR Sandah has functioned to shut the door on common law claims for broader native customary territories in Sarawak as it is a legally binding precedent. Furthermore, the 2018 amendment to the SLC in response to TR Sandah has ensured that claims for these territories are regulated by statute, thereby posing new barriers and challenges for Indigenous claimants. In TH Pelita Sadong Sdn Bhd v TR Nyutan Jami,Footnote ⁴⁴ the Federal Court decided that indefeasibility of title under the Sarawak Land Code 1958 overrides NCR even if such title was issued after NCR was asserted. This determination potentially allows the state government to circumvent the formal requirements of extinguishment and defeat NCR by an administrative act of alienation, reducing legal recourse to a matter of monetary compensation. Similar rulings in other jurisdictions are viewed as discriminatory since they assume that Indigenous title is “inferior and subordinate.”

In 2015, the (Gilbert, Reference Gilbert2016) Court of Appeal held that the seasonal collection of turtle eggs by Sabah natives was “not a native customary right” as it was beyond the scope of NCR defined in section 15 of the Land Ordinance,Footnote ⁴⁵ which only encompasses sedentarized activities. In 2016, the Court of Appeal ruled that any NCR claims must be dealt with under the Sabah Land Ordinance.Footnote ⁴⁶ Both rulings have taken a narrow view of the Land Ordinance compared to previous rulings that land laws in Sabah do not extinguish NCR but “serve to affirm their existence.”Footnote ⁴⁷

As for the domestic application of international human rights laws, the Malaysian courts have generally expressed reluctance in “sticking very closely”Footnote ⁴⁸ to them, unless enacted into local laws.Footnote ⁴⁹ Furthermore, Malaysia is not a party to any binding international conventions that directly concern Indigenous rights to lands, territories, and resources. In respect of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the majority of the Federal Court has held that “[i]nternational treaties do not form part of our law, unless those provisions have been incorporated into our law. We should not use international norms as a guide to interpret our Federal Constitution.”Footnote ⁵⁰ In the same case, Chief Justice Zaki nonetheless observed the UNDRIP “must still be read in the context of our Constitution,”Footnote ⁵¹ suggesting that the issue could be open for future consideration.

There is little doubt that land rights litigation has positive impacts for Indigenous Peoples in Malaysia. Beyond the material and economic outcomes of success, litigation has also contributed to “unlocking and reframing” land rights laws and processes, increasing community and public participation in Indigenous land rights issues, and reinforcing and strengthening communal social cohesion and cultural connections to land (Open Society Justice Initiative, 2017). However, the development of substantive Indigenous rights through the Malaysian courts is subject to conservatism, regression, and a degree of judicial unpredictability.Footnote ⁵² Additionally, common law litigation carries high stakes as a bad judicial precedent for Indigenous claimants invariably has adverse legal, policy, and practical implications for other local Indigenous communities facing similar issues. In other jurisdictions, court judgments on Indigenous land rights are critiqued for being influenced by extra-legal and political considerations (McNeil Reference McNeil2004). Such occurrences could well be aggravated in Malaysia, where the judiciary has not been short of controversy surrounding executive and legislative interference in its functions (Subramaniam & Nicholas, Reference Subramaniam and Nicholas2018; Yap, Reference Yap2015). Consequently, relying excessively on the Malaysian courts to resolve Indigenous land rights issues without positive executive or legislative intervention may not necessarily be the best way forward.

International Conservation Obligations: Potential Opportunities for Inclusion

Like many other Indigenous Peoples globally, Malaysia’s Indigenous peoples possess distinct customary knowledge systems and methods to conserve, protect, and regenerate their traditional territories in a sustainable manner. In this regard, international commitments towards the sustainable use of the environment and natural resources have recognized Indigenous Peoples as significant stakeholders in matters concerning their lands, territories, and resources.

For example, the United Nations Convention on Biodiversity 1992 (CBD), a binding international treaty to which Malaysia is a party, recognizes the need for contracting governments to respect, preserve, and maintain the traditional knowledge, innovations, and practices of Indigenous communities (Article 8(j)), and to move towards achieving its broader objectives of conserving biodiversity, sustainably using biodiversity resources, and equitably sharing benefits from the use of genetic resources (Article 1). Key to achieving these objectives is the maintenance of healthy ecosystems and a sufficient land base for Indigenous Peoples. Accordingly, the CBD’s Programme of Work on Protected Areas, agreed in 2004, has called for the recognition of Indigenous Peoples and Community Conserved Territories and Areas (ICCAs) as one of the preferred governance types for protected areas (Bulan & Maran, Reference Bulan and Maran2020). While ICCAs are conceptually new in Malaysia and domestic frameworks for such management are still at an early stage of development (Bulan & Maran, Reference Bulan and Maran2020), they nonetheless provide an opportunity for Indigenous communities within protected areas to showcase the advantages of autonomous and collaborative management agreements. The successful management by Indigenous Peoples in the Bundu Tuhan Native Reserve in Sabah provides a good illustration of how arrangements like ICCAs can work to the benefit of the community and the environment (Bulan & Maran, Reference Bulan and Maran2020). However, it remains to be seen whether domestic legal and policy frameworks, when developed, can produce effective and equitable co-management agreements. The requirement for such areas to be regarded as protected or conservation areas by the government may also limit the general application of this alternative form of local Indigenous governance.

Pursuant to its obligation under the CBD, the federal government passed the Access to Biological Resources and Benefit Sharing Act 2017 (ABSA) that came into force in Peninsular Malaysia at the end of 2020. The ABSA contains extensive provisions for the protection and recognition of Indigenous communities in respect of biological resources and traditional knowledge associated with such resources and the sharing of benefits arising from their utilization (Bulan & Maran, Reference Bulan and Maran2020). Of note is section 23(1)(a) of the ABSA that provides for the requirement of free, prior, and informed consent of the relevant Indigenous community for access to biological resources on land to which the community has rights established by law.Footnote ⁵³ Regardless of potential disputes regarding the meaning of the phrase “established by law” and its legal interpretation, the acceptance of a statutory provision on free, prior, and informed consent at the federal level constitutes a significant breakthrough toward effective engagement with Indigenous communities in matters that concern them and their customary areas.

Certification standards for sustainably harvested timber (Malaysian Timber Certification Council, 2012) and sustainable palm oil (Roundtable on Sustainable Palm Oil, 2019) consider Indigenous rights to lands and resources in their criteria. These include grievance mechanisms that may result in the cancellation of certifications for enterprises found to be in violation of these standards. In 2023, Sarawak timber giant Samling had its Ravenscourt forest management certificate revoked for not adequately engaging with local Indigenous communities (Keeton-Olsen, Reference Keeton-Olsen2023). Despite having limited economic and reputational consequences for the transgressor, and not legally enhancing the land tenure of local Indigenous communities, these mechanisms provide an avenue for Indigenous Peoples to voice their complaints and brings attention to transgressions. Both developments suggest that international conservation efforts have had the net effect of increasing prospects for the inclusion of Indigenous Peoples in matters affecting their traditional lands and resources.

Conclusion

Notwithstanding differences in the special legal position of the natives of Sabah, natives of Sarawak and Peninsular Malaysia Orang Asli, there is little doubt that Malaysia’s governments possess sufficient power to effectively recognize and accommodate land, territory, and resource rights for all Indigenous Peoples. However, a closer examination of the legal framework governing Indigenous land rights and their implementation in Malaysia in this chapter suggests that this is not a priority.

The relevant laws in Malaysia, intended in part to empower the government to protect Indigenous Peoples for their own good, have equally enabled and justified the use of traditional Indigenous areas in accordance with government plans – thereby dispossessing Indigenous Peoples of their traditional territories in practice. In Peninsular Malaysia, poor statutory and administrative protection for Orang Asli customary areas and lands has driven the Orang Asli to pursue the strategy of litigation, where they continue to enjoy a measure of success despite formidable obstacles. These victories have functioned as an added bargaining chip for Orang Asli communities and land rights advocates in their engagements with the state. However, these negotiations have yet to cause any meaningful land reform to recognize and protect Orang Asli customary territories. This legal status quo, where Orang Asli remain largely dependent on common law customary land rights for legal redress, is precarious as these rights are susceptible to judicial and legislative curtailment in the future. As observed, experiences from Sarawak, where the apex court has limited common law native customary rights, bear witness to this potential risk.

While the natives of Sabah and Sarawak can still rely on the explicit statutory recognition of their native customary rights in state laws, these rights have been legislated and administered restrictively by the legislature and executive, and more recently, interpreted narrowly by the judiciary. These actions have limited effective outcomes for the recognition and protection of native customary rights in these two states.

As such, the main impediment in Malaysia appears to be more domestically political rather than legal. The sustained lack of political will and priority for the effective recognition and protection of Indigenous lands and resources, even in states governed by a majority of Indigenous Peoples, suggest that the challenge lies in convincing the broader Malaysian polity that meaningful land rights are not only just but important to all Malaysians. It is in this regard that the increased international demand and requirements for Indigenous involvement in the sustainable conservation of lands, natural resources, and ecosystems present an opportunity to strengthen public support for Indigenous land rights in Malaysia. Towards realizing this opportunity, contextualized cross-disciplinary research on the high correlation between empowered and engaged local Indigenous land and resource management and positive conservation outcomes in Malaysia may well be crucial to rights advocacy and, perhaps more importantly, to conscientizing the populace.

Introduction

Over the last few decades, Indigenous Peoples’ movements in both Cambodia and Thailand have expanded and received increased recognition. While the modern concept of Indigeneity is relatively new to mainland Southeast Asia, and is still not officially recognized by many governments in the region, there is no doubt that the idea of Indigeneity is gradually gaining traction (Baird, Reference Baird2016, Reference Baird2019c).

The Government of Thailand has so far refused to recognize Indigenous Peoples, instead adopting what has become known as the “salt-water theory” (Erni, Reference Erni2008; Baird, Reference Baird and Yew2011), a position that many governments in Asia have adopted, and which Ben Kingsbury (Reference Kingsbury1998) has referred to as “the Asian controversy.” That is, the Thai Government recognizes that there are Indigenous Peoples in the Americas, Australia, and New Zealand, but because Thailand was not colonized by large numbers of Europeans, they deny that anyone in Thailand should be considered Indigenous, since the vast majority of those living in Thailand are of Asian descent (Morton & Baird, Reference Morton and Baird2019).

The concept of Indigeneity has, however, received more legal recognition in Cambodia, especially since it was legally legitimized with the passing of the Land and Forestry Laws of 2001 and 2002, respectively (Baird, Reference Baird and Yew2011, Reference Baird, Gombay and Palomino-Schalscha2019a), and through various other community organizing efforts in the 2000s. In particular, registered Indigenous communities are eligible to apply for communal land titles, designed to support rotational swidden agriculture (Baird, Reference Baird2013, Reference Baird, Gombay and Palomino-Schalscha2019a, Reference Baird2023). However, recently agrarian change has led to a greater emphasis on cash crops, and the increased prevalence of microfinance loans to farmers, collateralized by private land titles, is reducing the attractiveness of communal land titles for many Indigenous communities (Baird, Reference Baird2023).

Until a few years ago, the Indigenous Peoples’ movements in both Thailand and Cambodia were largely centered on non-government organizations (NGOs) and other civil society groups. However, the situation is changing. This chapter considers the intersection between Indigenous movements and mainstream electoral politics, and demonstrates how, over the last few years, some Indigenous activists in both Cambodia and Thailand – including those who have advocated for Indigenous rights over land and resources – have become more involved with mainstream electoral politics. However, this shift has not always been smooth and uncontested within Indigenous movements themselves.

Methods

This chapter is based on a series of English, Thai, and Lao language key informant interviews conducted in June and July 2019 with self-identifying Indigenous activists, academics, and members of civil society in northeastern Cambodia and northern Thailand. Interviews were also completed in both countries in relation to Indigenous Peoples over the last number of years. Social media posts were also utilized – mainly from Facebook and other media from both Thailand and Cambodia – to help make sense of how ethnic minorities, and particularly people who self-identify as Indigenous, have become more involved in electoral politics in their respective countries. This change is partially a new strategy for gaining mainstream recognition and more control over land and resources, as well as more rights to protect Indigenous languages and cultures.

The following sections provide basic information about the history of the Indigenous Peoples’ movements in both Thailand and Cambodia, with the goal of presenting necessary background information for framing the material that follows.

A Brief History of Indigeneity in Cambodia

In Cambodia, discrimination against upland ethnic minorities is not new. For example, they were referred to using the pejorative “phnong,” which Indigenous Peoples dislike (Baird, Reference Baird and Yew2011). Indicative of the circumstances, Cambodia’s 1993 Constitution does not explicitly mention Indigenous Peoples, instead only referring to “the Khmer people” residing in the country (Baird, Reference Baird2020). However, in the 1990s the concept of Indigeneity was introduced to Cambodia via foreigners working for various NGOs. In 2001, the concept was included in Cambodia’s new Land Law, specifying that only those designated as Indigenous Peoples are eligible for communal land titles. The 2002 Forestry Law also acknowledged the existence of Indigenous Peoples in Cambodia (Baird, Reference Baird and Yew2011). NGOs played critical roles in getting this legislation passed. There were also NGO-organized consultations in various parts of the country in 2003 (Swift, Reference Swift2019). In 2009, a sub-decree was adopted that specified the process for designating certain communities as Indigenous, thus making them eligible for communal land titles (Baird, Reference Baird2013, Reference Baird, Gombay and Palomino-Schalscha2019a, Reference Baird2023; Milne, Reference Milne2013). Historically, the Indigenous Peoples of northeastern Cambodia conducted rotational swidden on territory controlled by villages. There was no sense of private land ownership, and only members of particular villages were allowed to do swidden cultivation on village communal lands. However, these boundaries did not apply to fishing, hunting, and non-timber forest product collection, which could occur across village boundaries.

In recent years, the laws and sub-decrees related to Indigenous Peoples that have been passed in Cambodia have been crucial for increasing legitimacy of the concept of Indigeneity. For example, there are now a number of Cambodian NGOs that engage with and provide support on Indigenous issues, including the Highlanders Association (HA), the Cambodian Indigenous Youth Association (CIYA), the Conserve Indigenous Peoples Languages Organization (CIPL), the Cambodian Indigenous Peoples Organization (CIPO), the Cambodian Indigenous Women Working Group (CIWWG), the Indigenous Rights Active Members (IRAM), and others.

In recent years, some Indigenous activists from Cambodia have increased their international strategizing. This has included the annual participation of different Indigenous Peoples and their allies at the United Nations Permanent Forum on Indigenous Issues (UNPFII) in New York City. Indeed, Keating (Reference Keating, Bellier and Hays2020) has argued that while this forum can be frustrating for activists, and does not typically lead to recognizable or immediate changes in home countries, it can serve to socialize activists in certain ways, thus contributing to the legitimatization of Indigenous struggles and potentially expanding the Indigenous movement. In 2006, the first non-Indigenous Cambodian attended the UNPFII (Swift, Reference Swift2019) and in 2007 the first Indigenous person from Cambodia – an ethnic Kuy woman – presented there. Part of this transformation has involved ethnic Bunong people from Cambodia and Bunong from the United States traveling to the UNPFII to express their concerns about social and environmental issues affecting the Bunong in Cambodia and Vietnam (Keating, Reference Keating, Bellier and Hays2020).

Some Bunong people have also tried to increase their profiles and expand networking with Bunong people from Vietnam in the United States (Keating, Reference Keating2016, Reference Keating, Bellier and Hays2020). Activists have started working to bring together Bunong people living in different nation-states. Recently, one ethnic Bunong activist from Cambodia argued that change is necessary, stating that, “We have been divided by nation states and associated different ideologies, and this needs to change (Indigenous Bunong activist, 2019). Indeed, the land and forest laws differ among Bunong areas in Cambodia and Vietnam.

A Brief History of Indigeneity in Thailand

Thailand has a long history of ethnic inequality and racialized Othering (Draper et al., Reference Draper, Sobieszczyk, Crumpton, Lefferts and Chachavalpongpun2019; Vandergeest, Reference Vandergeest2003; Winichakul, Reference Winichakul and Turton2000), and those upland minorities characterized as “hill tribes” have frequently been imagined as not belonging in Thailand (Morton & Baird, Reference Morton and Baird2019; Toyota, Reference Toyota, Kymlicka and He2005, Reference Toyota, Rajaram and Grundy-Warr2007; Vandergeest, Reference Vandergeest2003).

The concept of Indigeneity was first introduced to Thailand in the late 1980s by people from outside of the country, and in 1992 the Asian Indigenous Peoples’ Pact (AIPP) – a regional NGO that supports Indigenous Peoples across Asia – was founded in Bangkok by an ethnic Naga man originally from an area now included in northeast India. Since the 1990s, however, the Indigenous movement has expanded considerably in Thailand, especially in the northern part of the country (Morton & Baird, Reference Morton and Baird2019). While Indigeneity is not legislatively or judicially recognized in Thailand, the Thai Government cabinet did establish, in 2010, “Special Culture Zones” for the Moken (sea gypsies) and Pwakanyaw (Karen) peoples in order to protect their cultures (Morton & Baird, Reference Morton and Baird2019). In addition, in 2015 the military government in Thailand seriously considered recognizing Indigenous Peoples (which they called chon pheun muang) in its new constitution. However, the military later changed its mind and decided to oppose the recognition of the concept of Indigeneity within the 2017 Thai Constitution (Baird et al., Reference Baird, Leepreecha and Yangcheepsujarit2017). In addition, the military government readopted the antiquated term “hill tribes” (chao khao in Thai) (Indigenous Activist, 2019), after it was dropped during the Thaksin era along with the Tribal Research Center in northern Thailand (Buadaeng, Reference Buadaeng2006).

Despite the lack of legal recognition, the concept of Indigeneity has become increasingly accepted in Thai society, and some ethnic minorities have come to self-identify as Indigenous (Leepreecha, Reference Leepreecha2019). However, the meaning of “Indigenous Peoples” remains confusing and contested in the country, even amongst minorities in Chiang Mai Province, northern Thailand, a place considered to be the center of the country’s Indigenous movement (Baird et al., Reference Baird, Leepreecha and Yangcheepsujarit2017). Indeed, chattiphan is better known in Thailand, although it means “ethnic group” rather than Indigenous Peoples, and without any acknowledgement of self-determination as a foundational concept.

Historically, there were a number of land tenure systems in place in the uplands of Thailand. Some Austroasiatic–language-speaking ethnic groups conducted rotational swidden cultivation. However, other Tibetan-Burman and Hmong-Iu-Mien–language-speaking ethnic groups migrated into northern Thailand from China over the last few hundred years. Each had their own land tenure systems, including both rotational and pioneering forms of swidden cultivation (Leepreecha et al., Reference Leepreecha, McCaskill and Buadaeng2008; Premsrirat et al., Reference Premsrirat, Dipadung, Suwannaket, Buasuang, Chusri, Srichampa, Thavornpat, Thawisak and Damsa-art2004). At present, the government does not issue private land titles for the uplands of Thailand. In addition, communal land titles based on ethnicity or Indigeneity do not exist in Thailand (Morton & Baird, Reference Morton and Baird2019). However, in recent years, the Thai government has begun granting some non-ethnicity-based communal land titles in northern Thailand (Witthayaphak & Baird, Reference Witthayapak and Baird2018).

From Indigeneity to National Politics in Cambodia

The concept of Indigeneity has been gradually taking root in parts of Cambodia for a couple of decades now. Recently, however, some Indigenous Peoples, led by ethnic Bunong people in Mondulkiri Province, have established a political party called the Cambodia Indigenous Peoples’ Democracy Party (CIPDP) (pak prachathipitai chun cheat doem pheak dich), which was officially registered with the Ministry of Interior on January 30, 2017. However, its office in Sen Monorom – the capital of Mondulkiri Province – was actually established in 2016, and party organizing began at least as early as mid-2015. At that time, three or four mini buses were occasionally hired to transport Indigenous activists from Ratanakiri Province to join party meetings at Sen Monorom. One of those activists was an ethnic Tampuon man named Tan Phly. He was the former leader of Indigenous People for Agriculture Development in Cambodia (IADC), an NGO based in Ratanakiri that was forced to close down a few years ago due to poor financial management. While he was originally focused on the CIPDP, he later switched over and joined the Cambodian People’s Party (CPP), the ruling party. He is now a member of Yak Loam Commune’s Commune Council, in Banlung District, Ratanakiri Province. Many other mainly younger Indigenous Peoples went to the CIPDP meetings in 2015, including Indigenous intellectuals, some of whom worked for the government as schoolteachers as well as in other positions. The people in Ratanakiri who initially took an interest in the CIPDP were ethnically Tampuon, Kreung, and Jarai (Hubbel, Reference Hubbel2019). However, according to one Bunong observer, most Indigenous Peoples in Ratanakiri dared not challenge the CPP (Bunong CIPDP advisor, 2019), as Ratanakiri has long been dominated by the CPP, particularly the ethnic Tampuon/Lao former Minister of Defense, Bou Thang, who worked with the Vietnamese who ousted the Khmer Rouge from power (Baird, Reference Baird2020), and retained considerable power until he passed away in 2019.

The leader of the CIPDP is a seventy-year-old ethnic Bunong man named Plang Sin. He was an activist in the royalist FUNCINPEC Party in the 1990s and 2000s. More recently, he became involved in community forestry work with NGOs in Mondulkiri Province (Bunong CIPDP advisor, 2019). As an indication of this, he was quoted in an article published in the Phnom Penh Post in 2016 with regard to a lawsuit that activists were pursuing against a large agri-business company, Socfin, which had grabbed a large amount of Indigenous land near Bou Sra, and converted the land into a large rubber plantation. Expressing frustration about the slow pace of progress to improve the situation, Plang Sin was quoted as saying, “We have been waiting for negotiations and justice since 2008, when our hair was black … But now our hair is gray.” Indeed, the legal system in Cambodia and internationally has so far not shown any tendency to support Indigenous struggles, as affirmed in the other chapters of this book. Although the leadership of the CIPDP is mainly ethnic Bunong, including Plang Sin himself, the CIPDP has tried to expand its base of support amongst other Indigenous groups in the country, as indicated above in relation to Indigenous Peoples in Ratanakiri Province, and in Kratie Province.

The slogan of the CIPDP is “ownership, self-determination, protection and justice,” and the party’s flag depicts an Indigenous man from Cambodia riding a male elephant, along with a full moon in the center on a green background.

The party is not having an easy time. First, the Indigenous movement is apparently not strong amongst all Bunong, with many not wanting to create a conflict with the government, and often many have a long history of supporting the ruling party. In addition, according to an ethnic Bunong advisor to the party, during the 2017 commune elections and 2018 national elections, the CPP and its supporters in government tried to retain Indigenous support, while watching the CIPDP carefully to see if the party was really independent, or if there was something nefarious going on behind the scenes. However, the Vietnamese and Cambodian governments have apparently been claiming that the CIPDP is linked with political dissidents aligned with the Front Uni de Lutte des Races Opprimées (Unified Front for the Struggle of the Oppressed Races) (FULRO) (Bunong CIPDP advisor, 2019) a group of upland ethnic minorities from the Central Highlands of Vietnam. It was considered pro-United States and anti-communist Vietnam, and later became allied with the Khmer Rouge after it was forced to flee Vietnam and stay in northeastern Cambodia. They fought against the communist Vietnamese after Vietnam was unified in 1975 (Baird, Reference Baird2020; Branigan, Reference Branigan1992; Central Intelligence Agency, 1981; Duiker, Reference Duiker1984; Human Rights Watch, 2002, 2011; Ngon, Reference Ngon1983).

Whether the government truly believes that the CIPDP is somehow connected to FULRO or not, the CPP was able to use this alleged connection effectively during the 2017 commune election and the 2018 national election campaigns, causing many voters to become doubtful of the CIPDP and their true motives. According to a Bunong CIPDP advisor, the CPP used this strategy in all Bunong-populated areas during the 2017 and 2018 election campaigns (Bunong CIPDP advisor, 2019), even though FULRO is now defunct, and most of the Bunong once allied with FULRO now disavow the group (Keating, Reference Keating2019).

Another obstacle that the CIPDP has faced is a lack of financial resources, which has limited its ability to campaign effectively and widely, or to attract strong candidates to run for office. The original goal of the CIPDP was to operate nationwide, but due to limitations in representation in different areas, and insufficient financial resources, the party had to focus its efforts in parts of the country where there are larger concentrations of Indigenous Peoples. There was initially some hope that the CIPDP could win some seats in the commune elections. The party managed to get 4,000 thumbprints to establish itself, but it only received 1,272 votes during the June 4, 2017, commune elections. The CPP’s strategy weakened the CIPDP, resulting in support for the party wavering at the ballot box (Bunong CIPDP advisor, 2019; Swift, Reference Swift2019). Later, the government offered to give the party some of the court-dissolved Cambodia National Rescue Party (CNRP) Commune seats, but the CIPDP declined the offer, as the party leadership felt that it was not right for it to fill those seats, since the people did not democratically elect the party.

During the 2018 election campaign, the party’s signs were seen in Kampong Thom Province (Ashish John, Reference John2019). However, the ruling CPP won all the seats in the National Assembly. Although the CIPDP only garnered 10,197 votes in the 2018 national elections in Cambodia, the establishment of this political party is significant for various reasons, especially because it is the first time in Cambodia that a political party has ever been established that is particularly oriented toward upland minorities. Cambodia uses a first-past-the-post electoral system, and the CPP won all 125 seats in Parliament. After the election, the CPP decided to reach out to other smaller parties, such as CIPDP, inviting them to join the National Supreme Consultative Council. Along with various other small parties, the CIPDP agreed to join this body (Bunong CIPDP advisor, 2019), although it is unclear how seriously the government is willing to take recommendations from the group.

Some Indigenous activists in Cambodia are quite concerned about the establishment of the CIPDP. They do not want their non-political efforts to become entangled in party politics, as they fear this could decrease the credibility of the movement, and levels of support for Indigenous issues. For example, one long-time Indigenous leader in Ratanakiri Province told me that she feared that politicians might claim that the CIPDP had separatist tendencies, and that this could hurt the Indigenous movement broadly in Cambodia (Indigenous leader from Ratanakiri, 2019). She also expressed some concern about efforts to bring ethnic groups divided by national borders together, fearing that could open up those groups to attacks that they are not truly loyal to the nation. As she put it, “We need to be careful about politics, as it could shut down opportunities for Indigenous Peoples.” She also said, “The Bunong in the United State are FULRO, the enemies of Cambodia; they were with the Khmer Rouge. We need to be careful with them” (Indigenous leader from Ratanakiri, 2019, also for information about the links between FULRO and the Khmer Rouge, see Voice of Democratic Kampuchea, 1980; Branigan, Reference Branigan1992). This narrative is similar to the discourse used by the CPP in the 2017 and 2018 elections campaigns to discredit the CIPDP.

There are also other types of concerns. Some Indigenous activists fear that the CIPDP was coopted by the government through agreeing to join the National Supreme Consultative Group. Therefore, some Indigenous activists are choosing to organize and strategize behind the scenes. Some of these people have formed an informal and unnamed national network of Indigenous activists. They deal with all kinds of Indigenous issues, but due to the new NGO law that is intended to exert more control over NGOs in the country, and the generally oppressive political climate in the country, which has worsened since the CNRP was dissolved by the Cambodian courts, they have chosen to keep low profiles. The group is skeptical about what the CIPDP can do considering the present political environment in Cambodia. However, it sometimes cooperates with officially registered organizations, including NGOs (Paterson, Reference Paterson2019).

From Indigeneity to National Politics in Thailand

In Thailand, unlike in Cambodia, a political party specifically oriented toward supporting Indigenous Peoples has not yet been established. However, a number of Indigenous Peoples – including some who have worked with the Indigenous movement in the past – joined various political parties and ran for office during the March 24, 2019, national elections, the first election since the 2014 coup d’état and military takeover of the government. They have particularly run as party-list candidates, due to doubts that they could win seats straight up (Sirivunnabood, October 24, Reference Sirivunnabood2019).

In 2004–2005, Anek Laothamatas, who was the head of the Great Group Party (phak mahachon) at the time, tried to convince Kert Phanakamneut to join them as a key vote mobilizer. Kert was particularly attractive to them, as he was both linked to Indigenous Peoples’ activism in northern Thailand, and is also closely connected with former followers of the Communist Party of Thailand (CPT), known as phu ruam phatthana chart thai [“those joining to develop the Thai nation”] (Baird, Reference Baird2021). However, mainstream politicians’ efforts to gain the minority vote did not result in much at the time (Suebsakwong, July Reference Suebsakwong2019). Much more recently, party activists again tried to recruit Kert to join them when the Palang Pracharat Party (phak palang pracharat) was first being formed, but he decided not to join them (Suebsakwong, July Reference Suebsakwong2019).

One of the first serious efforts by ethnic minorities or Indigenous Peoples in northern Thailand to gain political representation was after the Thaksin government established the Tambon Administration Organization (TAO) in 1994. Prior to this change, the central government appointed most subdistrict leaders, or kamnan, who were mainly ethnic Thais. There were, however, some exceptions. For example, in 1989, Khek Noi Subdistrict was established in Khao Khor District, Phetchabun Province, and since the population was almost all Hmong, a Hmong man named Prajuab Ritnetikul (Chaw Tua Lee) was appointed as the first kamnan for Khek Noi (Suebsakwong, October Reference Suebsakwong2019). In any case, the new TAO system gave local people a chance to vote for local leaders at the subdistrict level, which represented an important opportunity. Many Indigenous Peoples with NGO ties were elected to local government. However, several of those who stood for local elections were initially not closely linked to particular political parties. This has, however, gradually changed. For example, in 2018, Phonsupharak Sirijanthranont, a TAO elected leader in Lamphun Province, who is himself from northeastern Thailand but is married to an ethnic Yong woman, established the Thai Ethnic Party (phak chattiphan thai),Footnote ¹ with the hope of winning a party-list seat during the national Parliamentary elections that occurred on March 24, 2019. Most of those in the party are ethnic Lue and Yong peoples, although at least one ethnic Chong person from Chanthaburi Province in eastern Thailand joined (Leepreecha, July Reference Leepreecha2019). The leader of the party did not emerge from nowhere. He was previously a member of the Assembly of Indigenous and Tribal Peoples in Thailand (AITT), where he worked with Kert Phanakamneut and Yongyuth Seubtayat, Hmong Indigenous activists. Later, however, he left the network due to disagreements over financial management. However, the party was not able to garner enough votes to win any seats in 2019 (Leepreecha, July Reference Leepreecha2019).

The author first heard of Indigenous activists becoming seriously involved with mainstream electoral politics in Thailand in June 2018, even before official party-political activities were allowed. Kert Phanakamneut and Yongyuth Seubtayat had joined the Thai Local Power Party (phak phalang thongthin thai), a small political party established in 2012. The party is led by Chatchewal Kong-udom, also known as Chat Taopoon, a Chinese Thai businessman and former gambling godfather. He was also previously a Bangkok Senator and because he had a relationship with Kukrit Pramoj, he was able to become the executive editor of the well-known Thai language daily newspaper, Siam Rath, which Kukrit founded before he became prime minister of Thailand from 1975 to 1976. Crucially, Kert became deputy leader of the party, and Yongyuth was elected on June 2, 2018, as ethnic minority coordinator for the party. Notably, Yongyuth was previously the director of an NGO called the Hmong Association for Development in Thailand (MDT), with Kert as the vice-chair. Moreover, Yongyuth played a key role with regards to the Indigenous movement in Thailand, as MDT worked closely with the Association for Inter-Mountain Peoples’ Education and Culture in Thailand (IMPECT), with staff moving between the two organizations, and MDT and IMPECT sometimes organizing joint activities (Suebsakwong, October Reference Suebsakwong2019). Moreover, Yongyuth has defended Indigenous activists in court, and has written draft legislation in support of recognizing Indigenous rights in Thailand (Phanakamneut, Reference Phanakamneut2018). Both Kert and Yongyuth were apparently sufficiently impressed with the policy of the party to decentralize power to the local level. In the Khek Noi area, the most populous ethnic Hmong community in Thailand, the Thai Local Power Party candidate was a Hmong man named Da Songsawatwong (Xiong).Footnote ² The party-list candidate for the Thai Local Power Party in the same area was Yotying Senyakul (Chua Po Yang), who is also Hmong. A Thai retired military general in Bangkok, Sittideth Wongpratya, introduced Yongyuth and Kert to Chatchewal, and later indirectly promoted the party through his Thai language television show about ethnic minorities in Thailand.

Another important political party to consider is the Prachachart Party (phak prachachart), led by Wan Muhammad Noor Matha, better known as Wan Noor. He formally headed up the Wadah faction of the New Aspiration Party (phak khwam wang mai), led by General Chavalit Yongchaiyudh. He joined the Thaksin Shinawatra’s Thai Rak Thai Party (phak thai rak thai) in the early 2000s. The Prachachart Party is particularly strong amongst Muslim voters in the deep south of Thailand, where it won six seats in the 2019 election. It also gained a single party-list seat, thus giving it seven seats for the 481,490 votes (1.35 percent of national vote) it gained. Crucially for this chapter, the party not only vied for the Muslim vote in the deep south, but also Indigenous Peoples’ support in other parts of the country. For example, the Hmong 18 Clan Council of Thailand, which became interested in promoting Hmong candidates during the 2019 election, became particularly aligned with the Prachachart Party after the party agreed to provide the 18 Clan Council with funding to support the activities of the Council. The Hmong 18 Clan Council claimed they could deliver 200,000 Hmong votes for the party, but they did not even get close to doing so. This resulted in some of the leadership of the Prachachart Party claiming that the Hmong cannot be believed, as they could not deliver the promised votes. In addition, some Hmong in Wieng Pa Pao District of Chiang Rai Province joined the Prachachart Party, but not until less than ninety days before the election, thus resulting in those Hmong not being eligible for party-list seats (Leepreecha, July Reference Leepreecha2019). The Prachachart Party also tried to create alliances with other Indigenous groups in Thailand apart from the Hmong.

In the end, the Thai Local Power Party only garnered about 800 of the many thousands of potential Hmong votes in the Khek Noi area, despite running strong Hmong candidates there, and Khek Noi is also Yongyuth’s community. According to one observer, Yongyuth tried to attract support for the Party by promising to try to get the land in Khek Noi from the government and officially given to the Hmong people in Khek Noi. But this strategy only attracted interest from some elders. Some believe that he did not investigate the interests of younger people sufficiently. Younger Hmong people are apparently less likely to vote along ethnic lines than older people. The Prachachart Party chose a Hmong man named Adisak Bamrungkheeree (Hang Tsua Khang), who lives in Lao Lue Village, in Khao Khor Subdistrict, Khao Khor District to be an electoral candidate of Phetchabun Section 1, with the support of the Hmong 18 Clan Council. This caused serious disagreements between Hmong people in the Thai Local Power Party and in the Prachachart Party (Suebsakwong, October Reference Suebsakwong2019). The Prachachart Party candidate only obtained about 500 votes.

The Palang Phracharat Party, with a non-Hmong candidate, ended up with the most votes in Khek Noi. They had the support of the provincial government structure, and the former Pheu Thai Member of Parliament (MP) in the area switched over to join the Palang Phracharat Party (Suebsakwong, October Reference Suebsakwong2019). He is a member of the controversial Thammanat faction of the party (Sirivunnabood, October 19, Reference Sirivunnabood2019). The next most popular was the Future Forward Party (phak anakhot mai), which fielded an ethnic Thai candidate, but attracted the support of many young Hmong voters, who were attracted by the party leader. The party effectively used social media to connect with younger voters (Suebsakwong, July and October, Reference Suebsakwong2019).

Nationally, the Thai Local Power Party did not do very well, gaining only 214,189 votes, or 0.60 percent of the total vote. It only ended up with three party-list seats, with none given to Hmong in the party. After the election, the party joined a coalition with the military Palang Pracharat Party, which has tarnished the party’s reputation among some people.

The Hmong Thai Business Association became increasingly involved in electoral politics during the 2019 national elections, based in Chiang Mai. Two prominent leaders, Dr. Chanvit and Pho Luang Amnuay (Dou Jeng Sheng Yang in Hmong), and others, worked closely with the 18 Clan Council, and used clan leaders to mobilize votes. They worked to encourage Hmong people to run as candidates in all Hmong-populated areas (Yangcheepsujarit, Reference Yangcheepsujarit2019). However, one Hmong observer from Khek Noi believed that endorsements from the 18 Clan Council had very little impact on Hmong voters between eighteen and thirty years old, and that they did insufficient homework about what young voters were looking for (Suebsakwong, July Reference Suebsakwong2019).

Yet, younger Hmong voters were attracted to the Future Forward Party, which promised to end the military draft in Thailand (Suebsakwong, July Reference Suebsakwong2019). The party was also viewed as being pro-ethnic minority (Vaddhanaphuti, Reference Vaddhanaphuti2019), and has a strategy for promoting minorities (Yangcheepsujarit, Reference Yangcheepsujarit2019). Many people who were initially with the AITT, established in 1998, and later with the Network of Indigenous Peoples in Thailand (NPIT) (kheua khai chon phao phuen muang),Footnote ³ established in 2007, ended up campaigning in 2019 for the Future Forward Party. Initially some Indigenous leaders sided with the Thai Raksa Chart Party (phak thai raksa chart), led by well-known former Pheu Thai politician and student leader and CPT ally, Chaturon Chaiseng, but when the party was dissolved by the Thai Constitutional Court on March 7, 2019, many supporters switched to campaigning for the Future Forward Party. Younger Indigenous activists – and younger people more generally – ended up strongly supporting the Future Forward Party, not because they were linked to a particular ethnic group, or Indigenous Peoples more generally, but because their policies were generally more attractive (Vaddhanaphuti, Reference Vaddhanaphuti2019; Yangcheepsujarit, Reference Yangcheepsujarit2019).

Hmong voters still have a lot of interest in gaining political representation in Thailand. Za Xong Moua, the leader of the 18 Clan Council of Thailand, put it this way, “We, Hmong, have been in Thailand for almost 200 years and we do not have the position to voice our rights to get support to maintain our culture and customs. If the election goes the way we planned, we will have a voice with other groups to get support to maintain our culture and customs” (Suab Hmong News, 2019). This statement articulates the key reasons motivating Hmong people to run for political office.

In 2019, the first ethnic Hmong person ever was elected to the Parliament in Thailand, winning a party-list seat in Tak Province for the Future Forward Party. Nattaphon Suebsakwong (Keng Sae Yang) is a fifty-three-year-old man born in northern Phetchabun Province, who now lives in Tak Province, where many Hmong from Phetchabun moved at the end of the Communist Party of Thailand (CPT) (phak communit thai) in the early 1980s (Baird, Reference Baird2021). His wife is from Khek Noi, and he acted there in transnational Hmong films about the Hmong in the CPT (see Baird, Reference Baird2019b), which convinced the party to take him on as a candidate (Suebsakwong, July Reference Suebsakwong2019). Moreover, Nattaphon’s older brother Lu Yang is also a well-known Hmong singer (Leepreecha, July Reference Leepreecha2019). Nattaphon appears committed to his people. He declared that, “I want to introduce laws that guarantee land ownership and citizenship for my people, create a body that represents ethnic minorities and establish cultural protection zones for the minorities in which, for example, we are able to freely perform our funerary rites” (Galache, Reference Galache2019). He is concerned about addressing citizenship problems for some ethnic minorities in Thailand (see Toyota, Reference Toyota, Kymlicka and He2005, Reference Toyota, Rajaram and Grundy-Warr2007; Vandergeest, Reference Vandergeest2003). He is also looking for similar broad protections agreed to by the Thai Cabinet in 2010 for the Moken and Pwakanyaw peoples (Morton & Baird, Reference Morton and Baird2019). However, as the first Hmong MP ever, there is apparently a lot of pressure on him from the Hmong community in Thailand (Suebsakwong, July Reference Suebsakwong2019); only time will tell what he is actually able to achieve.

Nattaphon was not, however, the first Indigenous person to become an MP in Thailand. A Pwakanyaw man held a seat in Maehongson Province for one term, but he was deemed to have not been very successful as a politician, thus leading him to serve just one term in office (Vaddhanaphuti, Reference Vaddhanaphuti2019).

Another Indigenous politician, an ethnic Pwakanyaw man, Nawaphon Keereeraksakul, almost got a party-list seat with the Democrat Party in the 2019 election. He too has a strong NGO and Indigenous Peoples’ activism background, having previously worked for IMPECT in Chiang Mai. In 2019, the Democrats and the Future Forward Party both campaigned for elected rather than central government–appointed governors in the province, a position that minorities might well support. However, Nawaphon missed out, as the Democrat Party generally did not perform well, and the Democrats did not list minorities high on their party-list (Sirivunnabood, October 19, Reference Sirivunnabood2019).

Somchart Lalaem is another ethnic Pwakanyaw TAO chief who entered politics after previously playing a big role in supporting community forestry and land titles for communities in northern Thailand. He used his network in northern Thailand to support his political career, but he was not elected in 2019. Crucially, however, he is not linked with NPIT, but rather with a different NGO network in northern Thailand, the Northern Farmers Federation (Vaddhanaphuti, Reference Vaddhanaphuti2019).

Some ethnic Pwakanyaw activists in Phetburi Province, in western Thailand, have also become involved in party politics through supporting the Green Party (phak see khieo) in Thailand (Leepreecha, Reference Leepreecha2019). However, the Party is new and is not well known, and thus only received 22,568 votes, which amounts to 0.06 percent of the national vote.

Other minority politicians have also moved up from being elected to Tambon Administrative Organizations (TAO). The Future Forward Party, in particular, promised to put up candidates to contest these local positions. In the past, political parties in Thailand tended to stay out of local politics, but this may be changing. Future Forward particularly strove to support politically marginalized groups, such as ethnic minorities, Indigenous Peoples, and the LGBTQ community (Vaddhanaphuti, Reference Vaddhanaphuti2019). However, the military apparently saw Future Forward as a threat, and the Constitutional Court of Thailand dissolved the party on a technicality on February 21, 2020. The former Future Forward MPs joined other parties, but the majority became MPs for a new Move Forward Party (phak kao kai), including the Hmong MP from Tak, Nattaphon Suebsakwong.

One of the main reasons that more ethnic minorities or Indigenous Peoples have become involved in electoral politics is that previously it was a requirement that all MPs have at least a university bachelor’s degree, but the constitution in 2017 removed that requirement, thus opening up more opportunities for minorities to engage in electoral politics. In addition, in recent years Indigenous Peoples have become more knowledgeable about national politics, and social and business networking (Leepreecha, Reference Leepreecha2019). In addition, some political parties in Thailand have considered allocating a certain percentage of their candidates to ethnic minority candidates, and the Elections Council of Thailand has expressed interest in finding ways to encourage more women and minority candidates in elections, although it remains unclear how this might be done (Sirivunnabood, October 19, Reference Sirivunnabood2019).

Some Indigenous leaders also moved around between different political parties. For example, a retired ethnic Lisu police general was initially aligned with Kert and the Thai Local Power Party, but later decided to change alliances and move to another party (Leepreecha, Reference Leepreecha2019).

Crucially, however, as with Cambodia, some key Indigenous movement leaders in Thailand, such as Kittisak Rattanakrajangsri (ethnic Iu-Mien) and Sakda Saenmi (ethnic Lisu), the director of IMPECT, have chosen to stay out of electoral politics. They fear that becoming engaged in party electoral politics could damage the credibility of the movement, cause division within the Indigenous community, or otherwise work against the interests of Indigenous Peoples in Thailand (Leepreecha, Reference Leepreecha2019).

Conclusion

This chapter has focused on how Indigenous activists in both Cambodia and Thailand have variously and recently become more involved with electoral politics, although not in the same ways, or with the same results. In Cambodia, a new explicitly Indigenous Peoples’ political party was established, and contested the 2017 commune elections and the 2018 national elections, although with various limitations. In Thailand, however, Indigenous activists have become involved with electoral politics, but not through setting up an Indigenous political party as occurred in Cambodia. Instead, some Indigenous Peoples, both those connected with the Indigenous Peoples’ movement and those connected with other activist networks, have joined various political parties not explicitly linked with the movement and stood as candidates during the 2019 national election. This has led to some disappointments but has also resulted in the first Hmong person gaining a party-list seat in the Thai Parliament.

It is noteworthy that these developments have occurred in Cambodia and Thailand as Indigenous Peoples in both countries are trying to gain more control over land and other natural resources. In Cambodia, the CIPDP was established during a time when smaller political parties were being promoted by the ethnic Khmer activist Kem Ley, a well-known member of civil society who was assassinated on July 10, 2016. He had direct contact with some Bunong leaders before he was killed, and encouraged them to set up a political party. Since then, the CNRP, the main opposition party, has been dissolved. This dissolution has resulted in increased domination of the CPP in Cambodia politics, and the general decline of democracy in Cambodia. In Thailand, however, increased involvement of Indigenous Peoples in party politics followed the coup d’état in May 2014, and a period of strong military control of the country, including the writing of a new constitution that ensured the strong role of the military in politics through Senate appointments.

Moreover, the electoral approach adopted in Thailand uses a proportional representation system that is particularly advantageous for smaller political parties. Indeed, about 100 parties tried to register in Thailand, with over seventy eventually being successful in doing so. Undoubtedly, the particular political circumstances in both Cambodia and Thailand have been important factors in the rise of Indigenous Peoples in party electoral politics in both countries.

Crucially, however, the movement of Indigenous activists into national electoral politics has been criticized by some. Certain Indigenous activists have expressed concerns that mixing of Indigenous movements with electoral politics could be detrimental to the Indigenous movements in both Cambodia and Thailand. So, do Cambodia and Thailand represent a trend in the region? This may be the case. In the Philippines an Indigenous Peoples’ party, Sulong Katribu, contested the 2016 national elections. However, it failed to gain a party-list seat as hoped. This is not because of a lack of votes but because the Elections Commission and the Supreme Court refused to accredit Sulong Katribu to participate in the elections (IWGIA, 2019). There were also indications that Indigenous activists in Myanmar were considering their future involvement in electoral politics in the country (Vaddhanaphuti, Reference Vaddhanaphuti2019), but since the February 2021 coup d’ état electoral politics has become less of a focus.

Does the involvement of Indigenous Peoples in electoral politics represent a step forward for the Indigenous movements in each country, and the securing of more rights over land and natural resources? Or does their direct involvement in electoral politics jeopardize the Indigenous movements? It is probably still too early to answer decisively, but the shifts that have occurred in both Cambodia and Thailand – in the latter there has not been a supportive institutional framework for Indigenous Peoples’ rights – have been significant nonetheless. More attention and consideration are required, although the particular contexts in each country require particular attention.

Acknowledgements

Thanks to all those in Thailand and Cambodia who agreed to be interviewed for this study, particularly Prasit Leepreecha, Chayan Vaddhanaphuti, Urai Yangcheepsutjarit, Dave Hubbel, Neal Keating, Yutthapong Suebsakwong, Phunchada Sirivunnabood, Dam Chanty, Peter Swift, and Gordon Paterson. Thanks to others who asked me to remain anonymous. Thanks also to Neal Keating, Peter Swift, Yutthapong Suebsakwong, Urai Yangcheepsutjarit, Phunchada Sirivunnabood, John Draper, and William Nikolakis for comments on earlier drafts of this chapter. Ultimately, however, I remain responsible for the chapter’s content.

Dispossession and Resistance: The Pathway to Recognition and Reclamation

The Sámi are an Arctic Indigenous Peoples. The Sámi lands, what we call Sápmi, are in the northern part of Scandinavia and across Russia’s Kola peninsula. Sápmi and the Sámi people have been divided up over the course of history by the nation-states of Sweden, Norway, Finland, and Russia. Like the experiences of the Indigenous Peoples shared across this book, those of the Sámi indicate that they too have been dispossessed. Likewise, the Sámi have also fought back against this dispossession. It is through ongoing resistance and persistence that positive changes take root.

The Alta conflict, for example, involved a series of protests in Norway during the late 1970s and early 1980s against the construction of a hydroelectric power plant in the Alta-Kautokeino River (in Northern Sámi language, Álta-Guovdageaineatnu) in Sámi area, northern Norway. For the first time in history, Sámi organizations and activists, together with environmental activists, rallied against the Norwegian Government. Despite major demonstrations, eventually the hydroelectric power plant was built. But the resistance led to the recognition of Sámi rights on many levels.

For instance, after the conflict the Sámi Rights Commission was established. This Commission wrote a report resulting in the Norwegian Constitution recognizing Sámi culture and society. The Sámi Rights Commission also proposed the establishment of a Sámi Parliament, which had its first elections in 1989 (Somby, Reference Sombyn.d.). Later on, through the courts, came a recognition of Sámi customary and collective rights to their lands in Norway, and their constitutional right to fishing in Finland.

We see this pattern above throughout this edited collection – dispossession followed by resistance and then some recognition by the state. It is an unfortunate fact, however, that for many Indigenous Peoples their lands have not been reclaimed. They do not even have access to their lands, let alone any secure land title to them.

This concluding chapter weaves the themes from this book with the Sámi experience, and offers future directions for thinking about land rights in the context of the pressure of nation-states.

Insights from the Sámi and their Resistance

The official colonization of Sápmi commenced in the seventeenth and eighteenth centuries by the Swedish Crown (Kingdom).Footnote ¹ The official settlement politics by these nation-states have since then gradually displaced the Sámi as a majority in Sápmi. Today, Sámi are a majority in only a few municipalities.

Strategies for Securing Land Rights, and Overcoming the Barriers: Insights from the Collection

The chapters in this book show the diverse strategies used by Indigenous Peoples to have their rights recognized by the state, and to reclaim their lands. These strategies include direct action, where Indigenous Peoples physically resist dispossession, political activism, and litigation like that pursued by the Sámi. The opening chapter by William Nikolakis described the activism and litigation used by Yolŋu people in northern Australia to safeguard their land rights. Litigation has been an important strategy in Australia, Botswana, Brazil, Canada, Chile, and Malaysia. However, Fernanda Frizzo Bragato and Jocelyn Getgen Kestenbaum documented in Brazil that the state applied the “temporal framework doctrine” (tese do marco temporal) to contest Indigenous land claims – though with a change in government, there appears to be more political support for Indigenous land rights. In many countries the courts have simply ignored or avoided the land rights and title of Indigenous Peoples. In the chapter on the Democratic Republic of Congo (DRC), Lassana Koné writes that the Baka, Bambuti, and Batwa peoples have pursued community forestry concessions as an intermediary strategy to secure some jurisdiction over their lands, where the courts and state ignore their customary land titles. This approach by the Baka, Bambuti, and Batwa peoples is fraught with administrative hurdles, and they remain vulnerable to encroachment without secure title. The recent Indigenous Peoples’ rights legislation in the DRC may be helpful to address this problem.

The chapters show that the process toward recognition and reclamation is non-linear. In Paraguay, Correia, Villagra-Carron, and Glauser documented a pattern of “pendulum policies” starting with the violation and transgression of Indigenous land rights, moving towards justice and then back again to transgression. In Canada, where First Nations peoples have constitutionally backed rights, Diamond and Sanderson illustrated how the Torrens land titling system in Western Canada remains a major barrier to land reclamation, and brings into question the settler land titles. In New Zealand, Jones and Acosta concluded that the statutory approach to land rights has reduced the potential scope for change and treating land as tāonga tuku iho (a treasure that connects current generations with their ancestors and future generations). In India, Ambagudia showed that despite the focus on restoring lands to Adivasi peoples through statutory measures, there has been an overall decline in formal-titled Adivasi land holdings. In India, federalism and power to sub-national governments are frustrating land rights policies. While Indigenous Peoples may have constitutional recognition and land rights frameworks, as exemplified in Malaysia by Subramaniam, without secure and binding commitments that are coupled with social change there will always remain an “implementation gap” in land rights laws. Efforts to address the implementation gap, like the failed constitutional reforms in Chile, analyzed by Tomaselli, and the Peace Accord in Colombia in the chapter by Bolaños and Camilo Niño, illustrate the contested and highly politicized contexts in which Indigenous land rights exists.

In several of the chapters, Indigenous Peoples are not recognized for their rights. In Botswana, Hitchcock, Sapignoli, and Smith Moeti wrote that the country does not recognize the San as Indigenous Peoples, and High Court judgments supporting land and water rights are simply ignored, leaving San in a precarious tenure position. In Morocco, Bendella and colleagues documented the forces of a Pan-Moroccan Islamic identity that is subsuming the Amazigh (the country’s Indigenous Peoples). However, Amazigh’s agdal land rights system and the j’maa (local community assemblies) have survived in the High Atlas, and create a socio-ecological balance in this fragile region. Finally, Baird shows how, in Cambodia and Thailand, Indigenous Peoples are pursuing political strategies, seeking to build support in the electoral system to influence change and land rights.

These strategies used by Indigenous Peoples show their ingenuity and resilience for reclaiming their lands, often in the face of severe discrimination and violence.

Opportunities and Future Directions

Governments have made commitments to addressing land justice for Indigenous Peoples, yet in many instances, there are significant barriers to delivering on these promises. Processes like the Peace Accord in Colombia and new legislation in the DRC herald national commitments to land rights – but the pathways are unclear and there will always be resistance, like that to the recent failed constitutional reforms in Chile that aimed to strengthen Indigenous land rights, and the rejection of the Indigenous Voice to the Australian Parliament in late 2023.

Amongst all of this, there are customary systems and institutions that have been maintained in the face of severe assimilative pressures, like the Moroccan agdal system and the reindeer herding siida system across Sápmi, which offer critical lessons for creating robust and resilient institutions and land rights. These examples point to the need for Indigenous Peoples to look inwards and build on their own governance moving forward. However, there is a critical need to secure land for the collective survival of Indigenous Peoples all over the world. If this is reached, the benefits to people, the planet, and biodiversity will all be considerable since Indigenous Peoples are also the custodians of much of the world’s biodiversity and forests.

Concluding Thoughts

A longtime Sámi rights advocate Lars-Anders Baer summarized the land rights issue well from the Sámi perspective:

The Sámi fight for the recognition of their land rights is part of the international Indigenous movement. It has led to a development in recognizing the Indigenous rights at the local, state and international levels. The ILO 169 Convention and UNDRIP are the best examples of the legal instruments that have been the outcome of the movement. However, these instruments have neither been fully implemented by nation states, nor have the judgments on Indigenous land rights by the highest courts been followed. Thus, land rights, to a large extent, remain unfulfilled. What is required in general is respecting, recognizing and safeguarding Indigenous Peoples’ land rights and rights to use their natural resources. Indigenous Peoples have had, since time immemorial, a strong connection to their own lands and the core of their culture is related to these regions and the natural resources within. A first but major step is for all nation-states with Indigenous Peoples to create appropriate legislation to protect land rights in ways that are designed by Indigenous Peoples themselves and reflect their institutions, values, and goals. A non-negotiable requirement is for any legislation to be dependent on the free, prior, and informed consent of Indigenous Peoples themselves. Drawing from the insights from this book, the next step is for the state to support a comprehensive and good faith implementation of these land rights. Without this commitment, the reclamation of Indigenous Peoples’ lands will remain just that – an elusive promise.