Land Policies and Agrarian Reform. Proposal Paper. Part I. The recognition of cultural and historic diversity and territorial management

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Examination of the first two questions, that of the recognition of land rights and that of the optimisation of access to land leads us in both cases to raise the problem of local governance, or in other words, the capacity of populations to establish rules that allow them to manage land and natural resources in a sustainable and satisfactory way. This third question covers this subject related to governance. At the same time, it is an opportunity to widen the scope of our approach.

We feel that this issue deserves to be dealt with separately since it goes beyond the matters addressed in the first two questions. However, we can cover this subject only briefly in this paper. In fact, an extensive dealing of this question would require far more space due to its great complexity and social and political sensitivity. Therefore we shall provide a short introduction to the debate, in the hopes of going into greater depth in a supplementary report.

Recognition and delimitation of indigenous territories

The need to recognise Indigenous Peoples and their rights over their ancestral territories has gradually won ground over the past decades. Article 14 of convention 169 of the International Labour Organisation⁹⁵, adopted in June 1989 in Geneva, is very clear on this point: it obliges signatory countries to recognise and protect use and property rights of indigenous peoples over the land they have occupied for ages⁹⁶.

Support has been given to projects aimed at identifying the borders of territories occupied by indigenous peoples[(97) 97], and some countries have begun to recognise indigenous rights over vast tracts, along with very different procedures and degrees of autonomy⁹⁸. Generally, indigenous territories still spark conflicts. Quite often, the way in which the specific land tenure systems for indigenous lands are defined do not take into account the changes and real interests of the inhabitants. The level of autonomy conferred upon the populations is often insufficient as is the support provided allowing them to better organise and modernise their methods of government.

Recognition of cultural diversity

The link between an ethnic group and an ancestral territory is often complex. Several social and ethnic groups can have rights over the same territory.

The example of the link between the southern Saharan nomadic herdsmen (in particular the Fula and the Tuaregs) and farmers is a good illustration of this type of situation. In record # 2 of the second part of this paper, André Marty describes the difficulties for pastoral societies in gaining recognition of their specific characteristics vis-à-vis the rest of the society. A territory cannot be defined simply by drawing clear and precise lines. Circuits followed by herdsmen change according to climatic characteristics. Furthermore, rights of access to grazing resources and water are shared, and synergy with sedentary farmers must be adapted constantly.

A more general problem of local governance

Our reflection has led us quite naturally not to consider the territorial claims of indigenous peoples as being different from populations that do not consider themselves as indigenous.

In every case, whether the people in question is an ethnic minority, of mixed blood or belongs to a dominant majority group, we have observed the need for intermediate levels of land and resource management and therefore for effective local governance.

The basic difference is that indigenous groups have conserved, by virtue of their own culture and combat for existence, acute awareness of their differences and their own values. Also, they often have been able to conserve their own internal social rules, methods of settling conflicts, ways and customs that constitute a visible social capital that may be recognised as such not only by themselves, but also by other social groups. If, as we have emphasised, these specific systems of social organisation and thought, and traditional and original procedures of local power do not always succeed in adapting quickly enough to changes in the social and economic environment, they exist and serve as the basis for the struggle for their recognition. The situation is more complicated in the case of multiethnic societies that are unable to form links with a traditional culture and social structure.

Generalised customs and rules also exist that are accepted by everyone at local level, just as mechanisms for settling conflicts exist in peasant societies that do not claim to belong to any particular indigenous group, but recognition is even more difficult to obtain for them.

For this reason, there is a general need to establish or reinstall mechanisms of local governance at the local level. In every case we have seen, certain land tenure rights can neither be individualised nor converted into merchandise. Such a sort of commons, which varies according to each people’s culture and history, forms the basis of the « territory » on which a population must exercise its authority through the implementation of specific policies. Depending on the case, this relative « autonomy » relates in different ways with higher levels: State governments, institutions and decision-making bodies within developing constitutional arrangements that group together several States (and which can even be worldwide). In all cases, some degree of autonomy is always necessary for territorial governance.

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⁹⁵ This convention had been ratified by only 14 countries in 2000.

⁹⁶ However, reasoning in terms of property and use rights is not really appropriate in this case. The recommendation contained in article 14 states that care must be taken to protect access by indigenous peoples to land that is not exclusively occupied by them, but which they can use for their traditional activities and subsistence, with specific mention of nomadic peoples and itinerant farmers. It does not give any elements for further action.

⁹⁷ The World Bank, for example, gives a large amount of space to the delimitation of indigenous land in its project on land in Nicaragua. However, the definition of the land regime governing indigenous peoples’ lands in this country, as in many others, remains very unsatisfactory.

⁹⁸ For example, Panama has a special status for the indigenous territories it recognises (comarcas). Refer also to the Canadian experience. The INRA law in Bolivia recognises the rights of indigenous peoples over their original territories, though its application raises many problems.