Executive Summary

This report presents aspects related to the status of the land, territories, and natural resources, or LTR, of the indigenous peoples of Latin America and the Caribbean (LAC). It begins by brie y reviewing the history of LTR tenure in the region from the Colony, which was crucial in shaping its evolution, through the 18th and 19th centuries, until the present. In general, the tenure of territories and natural resources in the region has been considerably unequal, marked by the concentration of land in few hands and the dispossession of indigenous lands, as well as multiple and diverse forms of indigenous resistance to defend them.

Building on this base, the report then provides information regarding the LTR of indigenous peoples legally recognized in the region and the state of their implementation through various demarcation, registration, and title mechanisms, among other legal and administrative processes, that vary from country to country. Based on the analysis of select case studies, the report af rms that the status of land tenure is varied but characterized in many places by high rates of insecurity and social con ict. It is evident that LAC is the region of the world that has most advanced toward the constitutional and legal recognition of indigenous peoples’ rights to the LTR. Nevertheless, signi cant challenges remain at the regional level to close the gap between rights af rmed on paper—particularly related to implementing rights to prior consultation and free and informed consent in the context of the Indigenous and Tribal Peoples Convention 169 (1989) of the International Labour Organization (ILO)—and the reality of discrimination and exclusion that indigenous peoples continue to face under new forms of capitalist “development” that accumulate indigenous LTR legally or illegally.

Added to these challenges are the most urgent threats to indigenous peoples LTR. Among them, the report identi es conservation policies and the designation of UNESCO World Heritage sites that violate indigenous peoples’ rights to access, use, manage, and control their LTR; the plunder of LTR by extractive industries; megaprojects for infrastructure and energy generation; the impacts of agroindustry, ranching, and large-scale monoculture activities; the criminalization of indigenous rights and environmental defenders; the theft of ancestral knowledge from indigenous peoples for commercialization; and animal and plant traf cking in indigenous territories. To highlight the consequences of these threats, the report includes brief case studies from Argentina, México, Brazil, Paraguay, Guatemala, Ecuador, and Colombia.

In response to this dif cult situation, the report next summarized a few of the practices related to the status of sustainable management of traditional ways of life and resources, forms of knowledge, and indigenous institutions that play a preeminent role in their governance systems and good uses of their LTR. Given the intimate relationship that exists between many indigenous peoples and their LTR, they are among the rst to protect the biodiversity of the ecosystems which they depend upon for survival and to confront the negative impacts of climate change in their territories. Along these lines, the report considers some of the many actions that indigenous peoples have taken to defend their LTR and their right to self-determination in accordance with their own political, sociocultural, economic, ethical, and religious systems, among others.

The report concludes that, throughout history, indigenous movements have mobilized, organized, and intervened before States and all possible international bodies alike to place on the table their demands for the recognition and compliance of their fundamental rights, including the right to their identity, autonomy, and the access, use, and control of their LTR based on their own governance systems and development aspirations. Finally, it offers some general recommendations based on the ndings of its investigation to address the main challenges to the status of indigenous peoples’ TTR in LAC.

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Indigenous peoples in Asia

Asia has the largest number of indigenous peoples; about 411 million2 live in the region. Their share in the national population varies from 0.9 percent in Cambodia to over 37 percent in Nepal3 (see IPs in Asia-table Annex 1 for number of ethnic groups and estimated indigenous peoples’ population per country). Indigenous peoples live in virtually all of the region’s highly diverse ecosystems. They live in the high mountains of Nepal and the adjacent Tibetan plateau. They live in the coast of Indonesian archipelago or the dry dessert of western India. They live in the rainforests of Borneo or the insular Southeast Asia or mainland South Asia. As diverse as the ecosystems they live in, there are diverse cultures and ways of live. Each of the indigenous communities in Asia have their own distinct languages, cultures, livelihood systems, customary laws and customary institutions which have evolved from their close relationship with their territories.

Indigenous peoples, because of their subordination and distinctiveness from mainstream cultures and polities, have been and still are subjected to gross human rights violations, systematic racism, discrimination, and dispossession4. The experiences of indigenous peoples in Asia are very similar to the social and political processes observed by indigenous peoples in other parts of the world. They also share historical experience of political domination, discrimination and exploitation through processes of colonization and nation-state building. Many indigenous peoples are among the most disadvantaged and vulnerable groups of people in the world in terms of human security and attained level of basic needs (DESA 2009: 21-29, also footnote 4). This is largely due to the denial of their rights to lands, territories and resources. They continue to struggle to have their collective rights over their lands, territories and resources; their ways of living, their customary institutions and laws to be respected and recognized by the states.

Status of legal recognition of Indigenous Peoples and their Rights to LTR

Asian governments have used different terminologies for distinct groups of peoples within their countries such as “hill tribes”, “ethnic minorities” “minority nationalities”, “indigenous nationalities” “scheduled tribes”, “Adivasi”, “Masyarakat Hukum Adat.” Further, all Asian governments voted for the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) by the General Assembly in 2007, with the exception of Bangladesh, which abstained. However, most of these same governments, which recognize the existence of distinct peoples in their countries, have not made diligent political efforts to undertake State obligations to respect the rights of indigenous peoples, as de ned in international laws, including UNDRIP. The formal recognition and legal status promulgated by Asian states for indigenous peoples varies from country to country. So far, ve countries in Asia, the Philippines, Nepal, Cambodia, Japan and Taiwan5 have of cially used the term “indigenous peoples”. In the Philippines, the indigenous peoples and their collective and individual rights over ancestral lands and domains are recognized by the government through the comprehensive law known as the Indigenous Peoples’ Rights Act (IPRA). The IPRA uses both the terms “Indigenous Cultural Communities” and “Indigenous Peoples”, while the Constitution refers to “indigenous cultural communities”. In Nepal, indigenous peoples are recognized constitutionally as well as legally, who are of cially called “Adivasi Janajati” (indigenous nationalities).. However, their collective rights are not recognized. The National Foundation for Development of Indigenous Nationalities Act 2002 de nes Adivasi Janajati as a group or community with own mother tongue and traditional customary practices, distinct cultural identity, social structure and oral or written history. [..] The de nition more or less incorporates cultural identity rather than political entity of indigenous peoples” (Erni. 2008:411-412).

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Executive Summary

“Keep using the lands, waters, foods and medicines that we originally used, so that we can protect these things for our Nations and future generations.”
-- Recommendation from the Treaties 1-11 Elders Gathering, August 28th, 2017, Taywa Tagamou Nation, Treaty No. 9 Territory, Ontario Canada

“They made us many promises, more than I can remember, but they never kept but one; they promised to take our land, and they took it.”
-- Chief Red Cloud, Oglala Lakota

The Colonial Settlers representing the counties of Europe arrived in North America armed with European weapons, religions, new diseases and the Doctrine of Discovery to justify their conquest of the Indigenous Peoples and the appropriation of their lands and resources. They begin to make Treaties with many of the Indigenous Nations, promising to uphold peace and friendship, share or travel the land and respect their status as sovereign governments, which were unilaterally abrogated and broken.

Once the settler governments of Canada and the United States were established, they adopted laws, policies and court decisions that allowed further appropriation of land and water, forced relocations and treaty abrogations. They also curtailed the legal authority of Indigenous Nations to protect their traditional lands, resources, sacred places, eco-systems, and traditional livelihoods. Many Indigenous Nations were relegated to much-diminished land bases known as reserves and reservations while others were left with no legal status or recognized land whatsoever. This bitter history and its ongoing impacts on the health, rights and well-being of Indigenous Peoples of North America are presented in detail in the body of this report. It also presents examples of the revitalized efforts and successful strategies being carried out by Indigenous Peoples of North America to protect, defend, manage and restore their lands, waters, Treaty rights and traditional practices, and to ensure the transmission of their traditional knowledge and practices to new generations. The adoption of the UN Declaration on the Rights of Indigenous Peoples and its eventual endorsement by the governments of the US and Canada is seen as an historic achievement. Its full and effective implementation would provide solutions and remedies to both the causes and impacts addressed in this report. This report concludes by af rming that Indigenous Peoples in North America will continue to suffer from loss of lands, territories and resources until the United States and Canada ensure: (1) Full implementation of the UN Declaration on the Rights of Indigenous

Peoples; (2) Full recognition for and implementation of Treaties and Treaty Rights; and (3) Full implementation of the Right to Free, Prior, and Informed Consent (FPIC). It offers the following recommendations:

1) That the U.S. and Canada establish Commissions to speci cally review and assess the steps taken to implement the recommendations made to each country by Treaty Bodies, Special Rapporteurs and the UPR reviews regarding the rights of Indigenous Peoples and treaty rights to lands, territories, resources, and sacred places; and to take steps, in conjunction with Indigenous Peoples, for the full and effective realization of these rights;

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2. 2)  That the U.S. and Canada develop new legal strategies and procedures to address Treaty violations where the courts or justice systems of the State Treaty party are not the sole arbitrator; implement new, participatory, fair and transparent processes to resolve Treaty dis putes and violations in which both Treaty parties decide the solutions as equals; and support regional and/or international oversight and resolution processes to be used when disputes cannot be resolved between the parties as per Article 24 of the American Declaration on the Rights of Indigenous Peoples;

3. 3)  That the U.S. and Canada respect and support the traditional knowledge and practices of Indigenous Peoples regarding management and protection of their traditionally used and occupied territories and resources, including those recognized in Treaties, and provide support and recognition for Indigenous-controlled and run, resource and ecological management programs;

4. 4)  That the US and Canada respect the inherent self-determination of Indigenous Peoples and their right to full participation in the development of participatory mechanisms as provided by the UN Declaration Articles 37, 27, 28 and 40;

5. 5)  That the U.S. and Canada create national-level bodies with full, effective, equal participation of Indigenous Peoples in decision-making based on FPIC, to implement and put into practice the UN Declaration on the Rights of Indigenous Peoples, including processes for ongoing review and evaluation;

6. 6)  That the U.S. and Canada support full participation of Indigenous peoples in discussions regarding lands, territories and resources and implementation of the 2030 Sustainable Development Goals, including in National implementation plans and commitments; and,

7. 7)  That the United Nations eliminate discrimination against Indigenous Peoples from and within “Developed” countries regarding access to international and UN funding established to assist Indigenous Peoples.