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 Asiamany Indigenous Australians have become increasinglyunhappy with both the strength and forms of recognitionafforded to traditional law and custom under this Act, as wellas the socially disruptive effects of the native title process. 56Specific experiences show that while the courts may confer rights in landthis does not mean they confer meaningful self-determination ‘in the senseof the recognition of the jurisdiction’ of customary law, thus imposing thewestern distinction between title to own lands and sovereignty to controlthem. 57Between self-determination and State sovereigntyThe reason for rehearsing these experiences with colonialism is that thesesame laws, practices and legal doctrines still prevail in many post-colonialStates. On the other hand, it is true that many indigenous peoples today arein very different circumstances from these times. By means of mobilisationand assertive action, and above all through the revitalisation and reinventionof indigenous institutions, they have been able to turn the limited optionsoffered by the recognition of customary law, aboriginal title, selfgovernanceand native courts into opportunities to regain control of theirlands and lives. 58 Examples of this emerge from the experiences presentedin the following chapters. Nevertheless, the pitfalls in legal andadministrative procedures are still there and pose a challenge to the unwary.Papua New Guinea (PNG) provides a good example of why indigenouspeoples need to be vigilant. Whereas customary rights in land in PNG arerecognised in statutory law, meaning that some 97% of the national territoryis supposedly under native title, nevertheless it is estimated that some 5.6million hectares of clan lands, some 11% of the territory of PNG, have beenfraudulently taken over by logging, mining and plantation companiesthrough contested leases of the clans’ lands to third parties, as Special56 ibid.:24.57 Morphy 2007:32.58 Yazzie 1994, 1996; Zion & Yazzie 1997.31
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaAgricultural and Business Leases (SABL), which have been permitted byState agencies largely due to manipulations in the way indigenousinstitutions and land-owner associations have been recognised (or ignored)by government officials. 59 These kinds of manipulations largely explainwhy the indigenous peoples in PNG are now refusing to agree to agovernment scheme to title their lands, as they are convinced that similarmanipulations will ensue which will limit or misallocate clan lands andopen the way to other interests.Peru is currently engaged in a similar debate. In the aftermath of bloodyconflicts over land and resources in 2009, the Government has passed a billthrough the Congress which seeks to set out how the State will observe ILOConvention 169, to which it is a signatory, with respect to the right toconsultation. 60 The law however, while repeating the provisions of theConvention (which recognises the right of indigenous peoples to representthemselves ‘through their own institutions and representative organisations,chosen in accordance with their traditional customs and norms’ 61 ), then setsout procedures by which the State will recognise and list these authorities.These limitations are similar to those found in the Constitution and laws inIndonesia, which recognise indigenous peoples and some rights, ‘so long asthese peoples still exist’, thereby giving the State the discretion to determinewhen or whether to recognise the people or not.Even in the operations of the courts a trend is discernible for the rule of lawby the State to have gradually expanded, just as the capacity andindependence of the judiciary has increased, and for the legislature to passlaws which increasingly restrict the exercise of customary law. This isparticularly noticeable in laws directed at conservation and the management59 CELCOR, BRG, GP(Aus) & FPP 2011; Filer 201160 Ley del Derecho a Consulta Previa a los Pueblos Indigenas u OriginariosReconocido en el Convenio No. 169 de la Organizacion Internacional del Trabajo.Ms. (May 2010).61Op cit Article 6 translation from the Spanish by the author. ILO 2009 also setsout a number of examples of how international laws have been used to limit theexercise of customary law.32
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