Abstract
There is no dearth of literature on the tribes and the problems of survival they face in different parts of the world, particularly where they constitute a cultural and numerical minority. No book dealing with the tribes and their problems would fail to mention threats to control of their land as the defining feature of their current existence. Therefore, yet another book on the struggles of the tribal communities of Asia regarding their land rights would not ordinarily draw much absorbing attention. What is significant about Perera’s work is that it focuses on the traditional communal land rights of tribal/indigenous communities that involve self-governance in respect of their land, territories and natural resources. This control is crucial to the protection of their identity, culture and traditional way of life and separates them from the other social groups in their respective nation states. These communal land rights form the bedrock of sustainable development and environmental justice which make the tribal system of natural resource management so very relevant in the context of highly resource-extractive paradigm of economic development currently pursued across the globe.
The book is the outcome of a workshop organised by ADB (Asian Development Bank) in 2004 in Manila on completion of the International Decade of the World’s Indigenous Peoples. This was also an occasion to reflect on the experiences of implementation of their comprehensive guidelines on how to deal with the indigenous peoples in their landing policies adopted in 1998. The volume includes six of the ten papers presented at the workshop. The other two were specially written for the book. The papers cover the experience of four countries—Philippines, Cambodia, Malaysia and India—with a piece on evolution of international law in respect of the rights of indigenous people and the policy instruments of international financial institutions. The papers explore how development policies and practices impinge on the recognition of indigenous peoples’ land rights and the mechanism for their enforcement.
Perera has consciously chosen to use the word ‘indigenous’ rather than ‘tribal’ or ‘forest dwellers’ to describe these social groups, which is in consonance with the vocabulary used in international documents and also by international financial institutions, which some national governments (India, for example) have been reluctant to accept, as this nomenclature assigns tribal communities the status of descendents of the original occupants of the territory to which the country belongs before state formation or colonisation. This is the reason why India has not yet ratified the ILO (International Labour Organisation) convention 169. That has, however, not prevented India from providing a wide range of protection for human and resources rights for the tribal communities recognised in international law. The issues facing tribal social groups, however, are far more complex than mere recognition of their indigenous status and legal protection of their resource rights as this book hints at several places.
The focus on communal land rights of tribal/indigenous communities is timely because these rights are getting severely eroded by contradictory developments both at the national and International levels (Perera, chapter one). At the international level, on the one hand, the recognition of these rights has progressively enhanced in successive declarations and conventions of UN agencies and is also reflected in the lending policies of international development finance institutions. This recognition has, however, come only with pressure exerted by indigenous peoples’ movements and international and national non-governmental and advocacy organisations. On the other hand, the ascendancy of neo-liberal economy and globalisation with aggressive intrusion of foreign capital in mining, industrial and infrastructure development projects, duly backed by international donor agencies and national governments negate this recognition by ever increasing and, more often, forcible acquisition of land of these communities for exploitation of natural resources in their territories (MC Andrew and Il, Chapter four). Under the garb of ‘development’, the process of land acquisition ignores/overrules laws and policies that protect indigenous tribal communities’ rights in land, forest and access to other natural resources. Thus, not merely the international covenants but even national legal guarantees in their favour are ignored/super ceded using the power of ‘Eminent Domain’. Unfortunately, judiciary in nation states also fails to protect their rights and gives precedence to ‘national interests’. The affected indigenous communities are not even compensated for in terms of provision of alternative land, appropriate rehabilitation with adequate financial compensation and culturally conducive resettlement, which ensures access to natural resources and development amenities in their new setting. The result has been disastrous for these groups, as they experience not merely severe impoverishment but also social disintegration, loss of identity and devaluation of their culture and values—the very essence of their distinctness as a social group. This leads to a lowering of self-esteem and loss of self-confidence in their ability to manage their problems and face the outside world.
The loss of land rights is not confined to direct acquisition of indigenous/tribal peoples’ land by the government for development and nation building alone. More extensive deprivation of land rights occurs as result of unrestricted in-migration of non-tribal people into the tribal areas who push more and more tribal people out of their land and compete for access to limited natural resources, benefits and opportunities. The local tribal people get completely marginalised in this competition, unable to match the resourcefulness, cunning, political clout and aggression of the migrants. They are forced to join the destitute labour market, where they face multiple patterns of social exclusion and exploitation. Once the umbilical cord with their ancestral land and territory is snapped, they get relegated to the bottom of social hierarchy. The legal protection to their rights and institutions for their enforcement are rendered ineffective against this bulldozing force of development (Mc Andraw and Il, Chapter four). Tribal people are, therefore, resisting this development model with the help of some civil society groups sympathetic to their plight but face indifference and even hostility of the mainstream society of their nation states that are supportive of this pattern of development and want tribals to make a sacrifice for national interest. The resistance also brings them in conflict with the state, which uses its coercive power to suppress it and clears the way for their mega projects. Over a period of time, the resistance of the tribals and other displaced persons and support extended to them by civil society groups and political formations may lead to some concessions by way of a better rehabilitation policy for the displaced persons. But there is little chance of tribals ever getting their lost assets restored or even preventing dispossession in future from their land, habitat and environment and re-establishing their traditional way of life with collective control over natural resources in an exclusively earmarked territory.
But the loss of rights to collectively control and mange natural resources occurs not merely as a result of acquisition by the state for development projects. There are other factors eroding their legal entitlements in this regard. One powerful source of this erosion is the fast penetration of market economy into their territory as the book highlights. The market economy encourages/incentivises individualisation of land tenure, competition rather than cooperation, commercial exploitation of resource use rather than need-based drawl, keeping in view the imperative of conservation, differentiated rather than equitable access to resources and benefits, and so on. This has lethal consequences for the entire value system on which the traditional collective resource management of indigenous communities rests. Not only this, the market economy with its accent on exploitation of resources for profit and accumulation causes environmental degradation with widespread social injustice. Ordinarily, the forces unleashed by the market would erode any collective management system that is embedded in collective self-restraint. Therefore, it is difficult to accept the view expressed in the book that, if the market economy is promoted without disturbing the communal land management, the tribals can adapt to it keeping their institutional arrangements intact. The corrosive impact of the market in the long run renders ineffective collective decision making in respect of resource use, which involves equitable sharing by all the members of the community keeping in view a need for conservation. This becomes difficult to enforce as the market economy generates differentiation in society where members with higher income and status refuse to subject themselves to the discipline imposed by the community. The communal land rights also get eroded if some members of the community, under the impact of economic forces, are reduced to the status of landlessness or become a near landless person with insufficient land for subsistence. These persons are forced to migrate in search of alternative/supplementary livelihood and thus get completely delinked from their territory and its environment.
Yet, another powerful factor impinging on tribal communal land rights is the approach of policy makers who overwhelmingly belong to the non-tribal communities and bring to bear their own value system on policies and programmes designed for the tribal groups (Perera, Chapter five). They view tribal communities as backward and their traditional agricultural practices obstructive to modernisation and progress. The collective management of land resources is regarded as inefficient, leading to their sub-optimal use. This approach roots for introduction of private property in land, which facilitates growth of land market and promotes optional use of land for producing higher returns from it. In their view, penetration of the market economy would lead to faster development, which would remove isolation of the tribal people and enable them to join the mainstream society. This ‘assimilational’ streak dominates the thinking in the official policy documents, which reflects ignorance of and insensitivity towards the tribes and a contemptuous dismissal of their ethos. The bankruptcy of these assumptions about the tribes and prescriptions for what is good for them can be seen in the overall deterioration of the conditions of these groups in all respects compared to other groups. It is conveniently forgotten that land for indigenous communities is not a commodity or a property. It is no doubt a source of livelihood but its significance for them goes far beyond it. Land for them has a spiritual dimension—it is a space where their gods reside and their ancestors are buried. It is a life-rejuvenating force. They would not part with it for anything, much less money, since the land is linked to their very existence as a tribe. Besides, commodification of land and penetration of markets leads to greater influx of non-tribals into tribal areas, completely emasculating the ability of the latter to protect their interests. In the case of India, the process of individualisation of land rights started from colonial times when intermediaries were imposed on autonomous tribal communities and settlement operations were carried out, recording individual occupation of land. Even the laws protecting tribal land against alienation to non-tribals—which were introduced by the colonial government—took into account only ‘individual’ as the right holder, ignoring the ‘community’. The only exception to this structure feature was the partially administered areas (North-Eastern states) included in the Sixth Schedule and isolated pockets such as khuntkatti tenures in Chhotanagpur areas in the Fifth Schedule, where communal land systems still exist, though under increasing threat. The Land Reforms policies in independent India further obliterated communal land rights through their distorted understanding of the tribal land system. The Sixth Schedule areas that remained untouched by these developments are also experiencing weakening of communal land rights as a result of development policies and penetration of the market—both of which are promoting social and economic differentiation in the tribal communities and their eroding power to enforce decisions among the members.
Forests are central to the tribal existence. Their traditional lifestyle and system of self-governance revolve around land and forests. Their economy is dependent on free and unrestricted access to forest resources, which provide multiple benefits to them. This symbiotic relationship between the tribals and forests in the Indian situation was disturbed during the colonial rule when the government appropriated forests and converted them into government property. It also replaced community forest governance by state management of forests. The customary rights enjoyed by the tribals (and other people) for accessing resources in forests were extinguished/drastically curtailed. This caused immense injustice to the tribes particularly. The post-colonial state not only carried on with this exclusionary policy but further restricted the already limited access to forest resources available to them. It went further and evicted the tribals from their existing habitat in forests in the interest of wildlife conservation. The conservation policies continued to deprive tribals access to forest resources by prohibiting their movement in the forest for collection of minor forest produce and projecting an inherent conflict between tribal livelihood and conservation of forest and wild life. A proactive lobby of environmentalists, foresters and bureaucracy manipulated to fix the blame on the tribal communities for degradation of forests and the extinction of wildlife. This lobby used judiciary in India to evict tribals from their land, homes and environment, treating their long-standing occupation of forest land as encroachment. The massive political struggle of the tribals against this violence led to the enactment of Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Rights) Act, 2006, which, for the first time, has legalised customary rights of tribes in forests and undone the historical injustice of colonial rule. But the implementation of law is facing huge resistance from the forest officials (Perera, Chapter eight), both in respect of individual rights as well as community forest management. Besides, mining and industrial activities are gobbling up large areas of forests, which would render recognition of rights of the tribals in forest of little value. The forest bureaucracy fails to see the rationale of protection of communal tribal land rights as a condition for sustainable forest management (Gupta and Mitra, Chapter seven).
The book has rightly referred to the greatest paradox in respect of tribal land rights—whether individual or communal. On the one hand, with the enactment of laws providing protection to these rights, the responsibility is cast on the state to enforce them. On the other, the state through its development and economic policies takes away the rights of the tribals already enjoyed by them (Indira Sombolon, Chapter three). It is evident that faced with a conflict between the two roles, the state has chosen to ignore the protective role and pushed its developmental one. In such a situation, the tribals have nowhere to go. In the Indian context, as a result of this powerlessness, tribals have started resisting both peacefully and violently the state policies that hurt them. The most talked about example of this resistance is in the tribal concentration areas of central India affected by the Naxalite movement. Here, tribals encounter the coercive face of the state, which suppresses this resistance by resorting to draconian laws and the use of force disregarding the legally available civil rights. In such a situation, even the democratic space available to the tribals as citizens of their national state also shrinks. The affected tribals get no support from the democratic system to protect from injustice done to them and to seek inclusive policies which accommodate their interests. Tribes are thus powerless in the political system to influence decisions in their favour even where the issues affect them vitally. The huge edifice of democratic system is unable to change this imbalance of power in tribals’ favour. In the circumstances, the solution would have to be sought not in more and better legal guarantees but in developing social and political mechanisms by which tribals can be enabled to protect their rights.
Tribal Communal land systems and their institutions of self-governances also face threat internally. The economic growth, increasing consumerism and external influences have generated lifestyle changes in society. Tribals are also influenced by similar aspirations, which induces them to pursue commercial exploitation of their natural resources for improving their economic conditions. Mendoza and Brett (Chapter two) correctly highlight the point that legal recognition of communal land rights is not enough to sustain them. It is necessary to demonstrate that without disturbing the collective management of resources, incomes can be improved by application of advanced technology. Rather, communal land system would promote economic gains and prosperity for all members of the community through better distribution and more sustainable resource management. Unfortunately, nation states have never allowed communal land management systems to realise their potential but have castigated them following the colonial, individual-centric land ownership.
As the editor of the volume has rightly observed, the book does not claim to be a comprehensive treatment of communal land rights of the indigenous communities. Still, the dimensions of their rights that the papers in the volume present do highlight major critical issues pertaining to protection of tribal communal land rights that affect their dignified survival and cultural identity. It would have added greater value to the book if more country case studies in the region had been included and the colonial impact on the enjoyment of these rights and influencing national policies had been discussed.
This notwithstanding, the book is a welcome and valuable addition to this neglected aspect of tribal society and economy and should be read by all those who are interested in these groups and have deep concern for their plight. The tribes are facing the severest threat to their cultural survival. What happened to the indigenous groups in Americas, Australia, New Zealand, and so on, is getting repeated under the sophisticated garb of ‘development’ and ‘growth’ with legal and constitutional guarantees for protection of their rights providing no comfort to them. The state, which was envisaged as the custodian of their rights, has turned into a predator. A bleak future thus awaits them unless there is a binding commitment at the national and international levels that no development and growth would be pursued at the cost of these communities, with strong incentives for its enforcement and disincentives for its infringement. This, alas, is nowhere in sight.