Indigenous land rights defenders struggle against violence amid a lack of legal protection

Kirstyn Malcolm, IBA Junior Content EditorTuesday 16 June 2020

These cases remain unsolved and the impunity with which the culprits have acted has garnered international condemnation, despite the Costa Rican government’s pledges to investigate.

The Costa Rican land rights problem is rooted in the country’s Indigenous Law 1977. The Law provided indigenous communities with the right to ancestral lands, but did not compensate farmers who occupied that land, having bought it from other non-indigenous sellers or inherited it. Lara Domínguez, Strategic Litigation Officer for the Minority Rights Group, a non-governmental organisation, explains, ‘the struggles of the Bribri and Brörán peoples… stem from the government’s failure to adequately implement the Indigenous Law.’

Up to 40 per cent of Brörán territory and around half of Bribri territory is occupied by non-indigenous families and farmers. The President of Costa Rica, Carlos Alvarado Quesada, recently conceded that while many lands were declared indigenous territories in 1978, there has been a problem with enforcement. He declared, ‘the state of Costa Rica has not had the capacity – mainly economic – to protect the land rights of the people.’

Critics have argued that this has been an issue of political will, not economics. Domínguez says ‘states repeatedly fail to enforce international and regional human rights rulings upholding indigenous peoples’ land rights in their respective jurisdictions.’ She believes the situation in Costa Rica has been ‘fuelled by the lack of political will to implement fundamental legal protections in favour of indigenous peoples,’ not by a lack of funds.

‘The State’s failure to protect the communities, to investigate crimes or to hold those responsible accountable has sent a message that targeting members of the Bribri and Brörán communities is fair game,’ says Domínguez.

In British Columbia (BC), Canada, the proposed Coastal GasLink pipeline would cut across traditional Wet’suwet’en Nation lands. The proposal has led to protests and the construction of Wet’suwet’en indigenous activist camps in opposition.

The Wet’suwet’en hereditary leaders say the pipeline’s construction is in opposition to their right to protect themselves and future generations from harm. They argue that they have not signed any treaty to cede the land.

The Royal Canadian Mounted Police (RCMP) have responded to the protests with raids on camps and by arresting a number of pipeline opponents. Documents obtained by The Guardian newspaper in December, which allegedly relate to an RCMP ‘strategy session’, suggest some RCMP commanders argued for ‘lethal overwatch’ – defined by The Guardian as deploying an officer prepared to use lethal force – in relation to an activist blockade. The investigation also found plans to arrest children and the elderly if they got in their way.

However, an RCMP spokesperson has stated that ‘lethal overwatch’ was taken out of context and means ‘an observation position taken by armed police officers to ensure police and public safety,’ and further that the investigation was ‘incomplete’ and ‘unsubstantiated’.

David Paterson, Chair of the IBA Indigenous Peoples Committee, notes the RCMP ‘were originally formed as an armed militia to suppress, in battle, an indigenous uprising... that history is not lost on many indigenous peoples.’ The RCMP’s own website notes the force’s ‘sometimes difficult history with Indigenous communities in Canada’.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007, recognises that indigenous individuals are entitled, without discrimination, to all human rights recognised in international law. But, while BC has adopted UNDRIP by legislation, neither provincial nor federal law expressly states it is the law of BC – so it did not have to be enforced in the case of the planned pipeline.

Article 10 of UNDRIP states that ‘Indigenous peoples shall not be forcibly removed from their lands… without free, prior and informed consent (FPIC).’ In the Wet’suwet’en dispute, Paterson explains, the Canadian government believes that FPIC was given as the government consulted with the chiefs of the band councils. These councils were created by the Indian Act of 1876 and given limited powers of self-government in a move to promote assimilation.

However, traditional governments of First Nations do not usually correspond to band membership. Paterson says, ‘from the side of the government, they have… obtained the support of the “elected leaders”. From the side of the traditional chiefs, the lands in issue are outside the reserves and the Band Councils were not elected [in their eyes] to deal with these.’

Domínguez believes that indigenous rights frameworks must have higher standards of protection to ensure indigenous communities’ survival and their right to control their destiny. She says governments must recognise that their ‘fundamental rights are inextricably linked to… ancestral lands and that any measures that interfere with their access to and use of ancestral lands threaten their very survival as a traditional people.’

Paterson believes that the full ‘application of UNDRIP will be an important step forward in defining the rights of indigenous peoples.’ He hopes UNDRIP ‘will [become] a foundational “rights” document akin to the Universal Declaration of Human Rights.’ But he highlights that ‘it took generations to make this mess and it will likely take generations to clean it up’.

In mid-May, Wet’suwet’en leaders agreed to a memorandum of understanding with the federal government and BC. This aims to give the Wet’suwet’en title rights to 22,000 square kilometres of territory, presenting a glimmer of hope for indigenous peoples fighting for their ancestral lands in Canada.

Image: Joseph Gruber / Shutterstock.com