Mobile Peoples and Land Rights

1. Mobile Peoples and Land Rights International Law at local level

2. Few Points • International law and the local level • Standard settings and law reform • Litigation and Adjudication • Human Rights Law: • Main Human Rights treaties (Convention on the Elimination of Racial Discrimination) • UN Declaration on the Rights of Indigenous Peoples • ILO Convention 169

3. Land Rights as Human Rights • Property Rights & Land Rights: • Individual vs. Collective Rights • Ownership vs. Custodianship • A right to land demarcation & customary laws • Cultural Rights & Land Rights • ‘Way of Life’ • Cultural Heritage

4. ‘A Right to Cultural Integrity’ • Human Rights Committee: “culture as a way of life” (mainly land rights) • IACHR: ‘cultural integrity’: right to property, the right to life, and right to health. • African Commission: ‘cultural integrity’: religion (Article 8), right to culture (Article 17) and right to access natural resources (Article 21). (see Endorois Case)

5. Legal developments • Right to consultation • Right to Free, Prior and Informed Consent • Right to Participation • Right to Self-determined development?

6. Consultation Whenshould consultation take place? • When considering legislative or administrative measures • Prior to exploration or exploitation of sub-surface resources • Prior to relocation, which should take place only with the free and informed consent

7. Consultation • “These consultations must be in good faith, through culturally appropriate procedures and with the objective of reaching an agreement. Furthermore, the [community] must be consulted, in accordance with their own traditions, at the early stages of a development or investment plan, not only when the need arises to obtain approval from the community, if such is the case.” (Saramaka)

8. Free Prior and Informed Consent (FPIC) • Free imply no coercion, intimidation or manipulation; • Prior imply that consent has been sought sufficiently in advance of any authorization or commencement of activities; • Informed: information should be provided regarding nature, size, scope, duration of project; • Consent: ‘meaningful consultation’ and veto right if on indigenous lands

9. A Right to Participation • In the management and conservation of naturalresources • In thebenefits of exploitation of sub-surface resourceson MIPs’ lands

10. Natural Resources-Art. 15-ILO 169 • The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources. • In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.