Divers Paths to Justice - English - Forest Peoples Programme

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Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiamight directly lead to the extinguishment of custom-based rights as suchsurvey processes are based upon mainstream individual title traditions thathave no room to accommodate customary, rotational, inter-generational,non-intensive and community-oriented manners of land use, with whichsurvey officials are not familiar.Conflict of systems in land dispute resolutionLand dispute resolution by the CHT Land Disputes Resolution CommissionThe Chittagong Hill Tracts Land Disputes Resolution Commission Act 2001provides that there will be a commission on land to be headed by a retiredjudge of the Supreme Court of Bangladesh which will include as membersthe chairperson of the CHT Regional Council (or her/his representative), theconcerned hill district council chairperson, the concerned circle chief andthe Divisional Commissioner/Additional Divisional Commissioner, ofChittagong. The commission is to function for three years, but its term ofoffice may be extended by the Government of Bangladesh (GOB) inconsultation with the CHT Regional Council (CHTRC). The commission isto provide decisions on land-related disputes brought before it in accordancewith “laws, customs and systems prevailing in the CHT”. 30 It has theauthority to declare land grants illegal and to restore possession. Therefore,although called a commission, its main function is to hear disputes andprovide decisions, rather than recommend, as is usually the case for bodiesthat are called “commissions”.The commission was set up, following the letter and spirit of the CHTheld in Dhaka on 18 September 2010, and attended by CHT leaders, civil societyleaders and senior representatives of the press and media, as well as the author,member of the CHT Commission and renowned academic, Dr. Shapan Adnan,expressed his fear that the conduct of a survey was aimed at rehabilitating thegovernment-sponsored Bengali settlers on lands found to be without title, and hence,in the eyes of the district land administration officials, open to the government toallot out. For a detailed account of CHT land disputes, see Adnan 2004.30 CHT Land Disputes Resolution Commission Act 2001 (Act LIII of 2001).115
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaAccord of 1997, to provide expeditious, cost-free justice, accounting forcustomary law, to deal with the lingering and huge numbers of instances ofland-grabbing, land alienation, fraudulent deals, multiple registration and soforth. 31 There are dysfunctionalities and other problems in the work of thecommission (which has not yet provided its decisions on actual disputespresented before it), as mentioned below, but if it could overcome them, theCHT Land Disputes Resolution Commission may be one of the bestexamples of a system of land dispute adjudication involving indigenouspeoples that includes some of the key elements on indigenous peoples’ landrights that were identified in the UN Declaration on the Rights ofIndigenous Peoples, in that (i) it is inclusive (it has a majority of indigenouspersons as members); (ii) it accounts for customary law; (iii) its procedureis simple, and excludes the application of complicated court procedure (andlegal practitioners) and hence is expected to decide disputes expeditiously;and (iv) the forum’s decisions will have the status of a court decision andhence, the executive backing of the State. 32The work of the commission has, however, become extremely controversial,particularly due to clear disagreements between its chairperson – the retiredjudge – and the indigenous members, particularly the traditional chiefs.There are three main areas of dispute. In the first place, the indigenousleaders do not wish to start actual dispute settlement work unless and untilthe concerned law is amended to remove inconsistencies with the CHTAccord. 33 Secondly, these leaders disagree with the chairperson’s unilateral31 Roy 199732 The UN Declaration on the Rights of Indigenous Peoples (UNDRIP), Article26(3): “States shall give legal recognition and protection to these lands, territoriesand resources. Such recognition shall be conducted with due respect to the customs,traditions and land tenure systems of the indigenous peoples concerned.” UNDRIParticle 27: “States shall establish and implement, in conjunction with indigenouspeoples concerned, a fair, independent, impartial, open and transparent process,giving due recognition to indigenous peoples’ laws, traditions, customs and landtenure systems, to recognise and adjudicate the rights of indigenous peoplespertaining to their lands, territories and resources, including those which weretraditionally owned or otherwise occupied or used.”33 Among the defects of this law, two are of paramount importance. One concerns116
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