LAND GRABBING, INVESTMENTS &INDIGENOUS PEOPLES’ RIGHTS TO LANDAND NATURAL RESOURCES

Jérémie Gilbert

LAND GRABBING, INVESTMENTS &INDIGENOUS PEOPLES’ RIGHTS TO
LAND AND NATURAL RESOURCES:CASE STUDIES AND LEGAL ANALYSIS

Jérémie Gilbert

IWGIA – 2017

LAND GRABBING, INVESTMENTS & INDIGENOUS PEOPLES’ RIGHTSTO LAND AND NATURAL RESOURCES:CASE STUDIES AND LEGAL ANALYSIS
Copyright: IWGIA
Author: Jérémie Gilbert
Editor: Marianne Wiben Jensen & Genevieve Rose
Proofreading: Elaine Bolton
Cover design and layout: Jorge Monrás
Cover photo: Nelly Tokmagasheva

Hurridocs Cip data
Title: LAND GRABBING, INVESTMENTS & INDIGENOUS PEOPLES’ RIGHTSTO LAND AND NATURAL RESOURCES: CASE STUDIES AND LEGAL ANALYSIS
Edited by: IWGIA
Number of pages: 70
ISBN: 978-87-92786-80-7
Language: English
Index: 1. Indigenous peoples – 2. Human rights – 3. Land grabbing
Geographical area: Africa, Asia, Latin America, Russia
Date of publication: September 2017

The reproduction and distribution of information contained in this report is welcome for non-commercial purposes andas long as the source is cited. The translation of the report or the reproduction of the whole report is, however, notallowed without the consent of IWGIA.

INTERNATIONAL WORK GROUP FOR INDIGENOUS AFFAIRSClassensgade 11 E, DK 2100 – Copenhagen, Denmark
Tel: (45) 35 27 05 00 – E-mail: iwgia@iwgia.org – Web: www.iwgia.org

This report has been published with the financial support by
the Ministry of Foreign Affairs of Denmark

CONTENTS
Synopsis................................................................................................................................................................... 8
Introduction........................................................................................................................................................... 10
Section 1: What is ‘Land Grabbing’?...........................................................................................................11
1.1. Definition, Specific Features and Scale..........................................................................................................11
1.2. Investors and Industries Leading the ‘Land Grab’.......................................................................................... 121.3. Indigenous Peoples and Land Grabbing: Main Issues................................................................................... 14

Section 2: Country Overview.......................................................................................................................... 15
2.1. Land Grabbing and Indigenous Peoples in Africa.......................................................................................... 15
			Tanzania................................................................................................................................................... 15
			Kenya........................................................................................................................................................ 19
2.2. The ‘Great Asian Land Grab’ and Indigenous Peoples.................................................................................. 22
		 India.......................................................................................................................................................... 23
		 Myanmar................................................................................................................................................... 26
2.3. Latin America, Land Grabbing and Indigenous Peoples................................................................................ 28
			Colombia................................................................................................................................................... 28
			Chile.......................................................................................................................................................... 31
2.4. Land Grabbing in the Arctic and Siberia........................................................................................................ 34
			Russia....................................................................................................................................................... 34

Section 3: International & Regional Legal Framework(s)................................................................... 37
3.1. International Human Rights Law.................................................................................................................... 37
		 General Human Rights Law........................................................................................................................... 37
			The Right to Food..................................................................................................................................... 37
			The Right to Water.................................................................................................................................... 38
			The Right to Adequate Housing................................................................................................................ 39
			Protection from Forced Eviction................................................................................................................ 39
		 Indigenous Peoples’ Specific Rights.............................................................................................................. 40
			Land Rights............................................................................................................................................... 40
			The Right to Free, Prior and Informed Consent........................................................................................ 41
3.2 Business, Investments, and Human Rights................................................................................................... 41
			Business and Human Rights..................................................................................................................... 41
			Business and Financial Initiatives............................................................................................................. 42
			International Investment Law.................................................................................................................... 43

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3.3 International Environmental Law.................................................................................................................... 44
3.4. Guidance on Land Rights.............................................................................................................................. 44			Voluntary Guidelines (VGs) on the Responsible Governance of Tenure of Land,
			 Fisheries and Forests............................................................................................................................... 44			Principles for Responsible Agricultural Investment that Respects Rights,
			 Livelihoods and Resources....................................................................................................................... 45
			EU Land Policy Guidelines....................................................................................................................... 45
			African Union Framework and Guidelines on Land Policy in Africa (2009)............................................... 45

Conclusions & Recommendations............................................................................................................... 46
List of Literature Consulted............................................................................................................................ 49
About the Author................................................................................................................................................. 52

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SYNOPSISAt the international level, indigenous peoples’ rights
to land and natural resources have been articulated
under the United Nations Declaration on the Rights ofIndigenous Peoples (UNDRIP) and International Labour
Organization (ILO) Convention 169. Indigenous peoples’
rights to land are also protected by other international
human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights(ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) andthe Convention on Biological Diversity (CBD). At the regional level, the African Human Rights System and theInter-American Human Rights System have also playeda key role in the promotion and protection of indigenous
peoples’ rights to lands and natural resources. The Awas
Tingni case in Nicaragua (Inter-American Commission
on Human Rights, 2001), the Endorois ruling in Kenya(African Commission on Human and Peoples’ Rights,
2010) and the Ogiek ruling in Kenya (African Court on
Human and Peoples’ Rights) are to good examples.
International law on indigenous peoples’ land andnatural resource rights includes the rights to own, use,develop and control their traditional land and natural resources. Indigenous peoples’ land rights comprise bothindividual and collective rights, and States have the duty
to ensure recognition and effective protection of indigenous peoples’ land and resource rights. Indigenous
peoples should not be displaced from their lands or territories and, if relocation is necessary, the affected indigenous peoples should give their free, prior and informed
consent and be adequately compensated.
Despite the recognition and protection existing at
the international and regional levels, indigenous peoples’ rights to land and natural resources are very often
violated and not respected at the national level, either by
States or the private sector. While the phenomenon is
not new, as indigenous peoples’ rights have historicallynot been respected, there seem to be an increase in theforced displacement suffered by indigenous communities globally. In what has been labelled ‘land grabbing’,
there has been a sharp acceleration in acquisition oflands globally, notably by foreign investors in search ofarable land and natural resources. Land grabbing andexternal pressure on indigenous peoples’ lands has become a widespread reality all around the world due tolarge-scale development projects, the establishment of

8

National Parks, conservation areas or game reserves,agro-investment projects, biofuel production, logging or
extractive activities. Climate change mitigation and adaptation as well as green growth plans can also badly
impact on indigenous peoples’ rights to land and natural
resources.
The Land Matrix Initiative (LMI), which is a global
partnership aimed at improving transparency aroundlarge-scale land acquisitions by making these deals
public, indicates that such acquisitions continue to be an
important issue across the globe.1 Over the past decade,almost 50 million hectares of land have been leased orbought from individuals, communities and governments
for the large-scale production of biofuels, food, forest
resources, industrial goods, infrastructure, tourism andlivestock. The available data shows that, while the phenomenon is global, “Africa remains the most significant
target area, with deals concluded in many countries
across the continent. It accounts for 422 concluded agricultural deals (42% of all deals) and 10 million hectares(37%).”2
Many of these land deals are directly affecting indigenous communities, which are then forced out of theirlands. Research done by Global Witness shows that, in
Malaysia, less than five per cent of Sarawak’s rainforest remains in a pristine state, unaffected by logging orplantations, with land deals over the forests mainly affecting indigenous peoples.3 Another study found that
72 % of the Peruvian Amazon has been zoned for hydrocarbon activities, negatively impacting the rights oflocal indigenous peoples.4 And, in Russia, indigenous
peoples’ territories are heavily affected by large energy
projects such as pipelines and hydroelectric dams. In its
report on Extractive Industries and Indigenous Peoples,the UN Special Rapporteur on the rights of indigenous
peoples also points out that because of “the worldwide

1
2

3

4

See http://landmatrix.org/en/
Analytical Report of the Land Matrix II - International Land Deals
for Agriculture - Fresh insights from the Land Matrix (October2016).
Global Witness (2013) “Inside Malaysia’s Shadow State: Backroom deals driving the destruction of Sarawak”, available at:https://www.globalwitness.org/en/campaigns/forests/inside-malaysias-shadow-state/
Matt Finer and Martí Orta-Martínez (2010) “A second hydrocarbon boom threatens the Peruvian Amazon: trends, projections,and policy implications”, Environmental Research Letters, Volume 5, Number 1.

drive to extract and develop minerals and fossil fuels […]coupled with the fact that much of what remains of thesenatural resources is situated on the lands of indigenous
peoples […] indigenous peoples around the world havesuffered negative, even devastating, consequencesfrom extractive industries.”5 This global pressure on the
few natural resources left on indigenous territories, therapid growth in the extractive industry, and the need forthe exploitation of the natural resources are putting newstrains on indigenous peoples’ rights over their ancestral
territories.
State and private actors such as corporations, butalso international investors and donor agencies, are at
the heart of such a ‘land rush’, which does not comply
with international legal standards regarding indigenous
peoples’ rights. Increasingly, donor agencies are focusing on economic growth and providing substantive
support to the private sector to support green growthand large development activities. Many agencies haveadopted a similar focus but are lacking proper mechanisms to ensure that the fundamental rights of indigenous peoples, and notably their right to free, prior andinformed consent, are respected.
IWGIA and its partner organizations in Africa, Asia,
Latin America and Russia have, through many of theirprojects, been addressing the problem of land grabbing.
IWGIA has supported, among others, projects related toland titling, monitoring and documenting of gross viola-

5

9Report A/HRC/24/41, “Extractive industries and indigenous peoples. Report of the Special Rapporteur on the rights of indigenous
peoples” (2013)

tions of indigenous peoples’ rights to land and natural
resources, strategic litigation, policy lobbying, community awareness-raising and mobilization. IWGIA and its
partners have also been active in raising this issue in
relevant international and regional fora, such as the UN
Permanent Forum on Indigenous Issues, Expert Mechanism on the Rights of Indigenous Peoples, Universal
Periodic Review, UN Treaty bodies, African Commission
on Human and Peoples’ Rights, Inter-American Commission on Human Rights, UN Working Group on Business and Human Rights.
Based on this experience over the last few years, andreflecting on the acceleration in the global ‘land grab’,
IWGIA organized a workshop to take stock and reflect
on the situation. The workshop was held in Copenhagen, Denmark, from 29-30 October 2014. The seminar
was attended by IWGIA’s partners from India, Myanmar,
Kenya, Tanzania, Colombia, Chile and Russia, as well
as by the UN Special Rapporteur on the rights of indigenous peoples, the Finnish Ministry of Foreign Affairs,
the Danish Ministry of Foreign Affairs, many Danish andinternational NGOs, the Danish National Human Rights
Institute, experts and representatives from the private
sector, including DONG Energy, Deloitte and IFU (Investeringsfonden For Udviklingslande) as well as IWGIA’s
staff, members and board. Building on this seminar, thisreport offers an analysis of the issue of land grabbing,investment and the impact it has on indigenous peoples.

INTRODUCTIONO

ver the last few years, the very large increase inland investments - mainly in developing countries- has given rise to an increased reference to ‘land grabbing’ or ‘land grab’, terms which have now entered thelexicon of most of the media. While it is true for mostindigenous communities that deprivation and violation of
their right to land is not a new phenomenon, it is also
true that the more recent ‘land grabbing’ phenomenon
has a particularly rapid and negative impact on indigenous peoples’ rights. Hence, while ‘land grabbing’ may
be seen as the continuation of an historical process ofconstant invasions of indigenous peoples’ lands, it nonetheless seems that we have witnessed a significant increase in the large-scale appropriation of land over thelast few years.
This ‘land rush’ is driven by the increased marketization of land and its production potential. This is the resultof many related phenomena, including the globalizationof agricultural production, the quest for food security bycountries lacking arable lands, the strive for investment
in energy and biofuel security ventures and other climatechange mitigation strategies, as well as recent demands
for resources from newer hubs of global capital. The
combined food and financial crises of 2007/08 were key
triggers of the recent wave in large-scale land investments, with equity investors and pension funds in particular seeking new asset classes for investment. Since
then, land and investments in agricultural and food production have been seen as a key area for safe, fast andreliable investment by most public and private investors.
In parallel to this process, increased investment in the
production of biofuels has also had a very significant
impact on the global land rush. The pace and scale ofland acquisitions globally have dramatically increased
in recent years as a result of changes in commodity
markets, agricultural investment strategies, land prices,
and a range of other policy and market forces, and thishas resulted in massive investments in land acquisitions
across the globe.
In this global quest for land and natural resources,indigenous peoples are particularly negatively impacted.

10

While most local communities, peasants, farmers andother local land users are affected by this global landrush, embedded discrimination, a lack of recognition ofland tenure and vulnerability mean that this recent landrush is affecting indigenous peoples particularly badly.
The following report aims to examine the impact of land
grabbing on the rights of indigenous peoples. The aimsof the report are to offer a ‘map’ of the main issues affecting indigenous peoples, explore the relevant legal
framework and offer some recommendations as to how
it could be addressed through a more systematic andcross-regional approach.
To support such aims, the report is divided into threedifferent sections as follows:
The first section provides an overview of land grabbing, land rights and human rights in relation to indigenous peoples’ rights. It examines the definition(s) ofland grabbing in terms of how it differs from other formsof land dispossession, the scale of such land grabbing,the industries involved and how this affects indigenous
peoples generally.
The second section illustrates case studies of investments made by donors, financial institutions, private actors and States that could or already have led
to grabbing of indigenous peoples’ land in Tanzania,
Kenya, Central India, Myanmar, Colombia, Argentina,
Chile and Russia. It also maps out the relevant existing national laws and regulations in place in thesecountries.
The third section focuses on the law and how international law could be used in the context of current
land grabbing. This section concentrates on international human rights law but also on other legislation
on investments treaties, arbitration and other legal
initiatives that is relevant to understanding how land
grabbing touches on many areas of the legal framework. This section also focuses on the business andhuman rights approach currently being developed by
the United Nations in order to evaluate its relevancein the context of land grabbing.

SECTION 1: WHAT IS ‘LAND GRABBING’?

1.1. Definition, specific features and
scale

•

‘Land grabbing’ has many different definitions but what
they all have in common is the idea that it involves thelarge-scale acquisition of land for commercial or industrial purposes, such as agricultural and biofuel production, mining and logging concessions, big infrastructuredevelopment or tourism.6 Most definitions agree that it
involves acquiring more than 200 hectares, with somepushing for a threshold of 1,000 hectares, many involving more than 10,000 hectares and several more than
500,000 hectares.7 In any case, it concerns large-scaleland acquisition. It also involves land being acquired byinvestors rather than producers, very often foreign investors.8
There is also a much more negative aspect of thedefinition of land grabbing as it refers to the fact thatsuch large-scale acquisitions are undertaken with limited(if any) consultation of the local communities, limited (ifany) compensation, and a lack of regard for environmental sustainability and equitable access to, or control
over, water resources.
Many civil society organizations have also come up
with their own definition of land grabbing, in particular
highlighting the fact that it takes place when land investors have infringed procedural and substantive rights.
For example, the International Land Coalition’s Tirana
Declaration defines land grabbing as acquisitions orconcessions that are one or more of the following:•••in violation of human rights, particularly theequal rights of women;
not based on free, prior and informed consent of
the affected land users;•

There have been a number of debates to decide whether ‘land grabbing’ is truly a new phenomenon or simply
a continuation of the colonial foreign land grabbing endeavours aimed at ensuring the marketization of natural
resources.10 Arguably, land grabbing is not a new phenomenon since forced dispossession of the local population from their land in order to ensure the commercial
exploitation of their natural resources is unfortunately
part of our global history; however, this current wave ofland grabbing is nonetheless based on important shifts
in terms of land usage and agricultural production.11
While at the local level there may be some variation, theoverall global picture shows that there is a current movetowards the large-scale acquisition of land by foreign investors with the aim of either:
•

•

7

8

11

Transnational Institute (2013) “The Global Land Grab: A Primer”(TNI, Agrarian Justice Programme, February 2013).
The 200-hectare figure comes from the International Land Coalition’s definition of ‘large scale’. Not only is 200 hectares ten times
the size of a typical small farm but, according to the latest Foodand Agricultural Organisation-led World Agricultural Census, it isalso larger than the average land holding in all but three developing countries.
Although the distinction between national and foreign investors
can sometimes be blurred by the partnerships organized between
national and foreign entities.

converting local forms of so-called ‘unproductive’ domestic food production to the large-scale
agricultural export of food; orconverting lands (often forest lands) for the production of biofuels for export.12

Hence, what seems to distinguish this current wave ofland grabbing from previous ones is its relatively fast and96

not based on a thorough assessment, or are in
disregard of social, economic and environmental
impacts, including the way they are gendered;
not based on transparent contracts that specify
clear and binding commitments about activities,
employment and benefits sharing, and;not based on effective democratic planning, independent oversight and meaningful participation.9

See: http://www.landcoalition.org/about-us/aom2011/tirana-declaration
10 See: L.A. Wily (2012) “Looking back to see forward: the legal niceties of land theft in land rushes” Journal of Peasant Studies
39(3-4), p. 752.
11 See: S. Borras and J. Franco (2012) “Global Land Grabbing andTrajectories of Agrarian Change: A Preliminary Analysis”, Journalof Agrarian Change, 12(1), 34–59.
12 For more detailed analysis, see: Borras, S. and Franco, J. (2010)“Towards a broader view of the politics of global land grab: rethinking land issues, reframing resistance.” Working Paper Series No. 001. Initiatives in Critical Agrarian Studies (ICAS). The
Hague: International Institute of Social Studies (ISS).

global pace, driven largely by new investment strategies
focused on investing in food and biofuel production. Agribusiness and food and biofuel production as sources ofinvestment seem to be the key drivers of this new waveof land grabbing. This current wave of land grabbing also
seems quite specific in terms of the timescale of the acquisitions. These are usually conducted under very long-term‘leases’ or contracts to use the land (very often 99-yearleases) and covering very large tracts of land (some of thedeals have included more than 30,000 ha).
It is hard to obtain an exact figure on the scale of thephenomenon, notably due to the lack of transparencyof most of the land deals. Nonetheless, several studies
on the scale of the phenomenon have been undertaken.
In 2009, the Food and Agriculture Organization (FAO)
estimated that, over the 2007 to 2009 period, foreign investors acquired at least 20 million hectares in Africa.13
In 2009, the International Food Policy Research Institute(IFPRI) estimated that, between 2006 and 2009, deals
were being negotiated for 15 to 20 million ha of farmlandin developing countries.14 More recent figures from 2012
note that at least 80 million hectares of fertile farmland
have been leased to foreign investors, involving some
US$100-140 billion in Africa alone.15 A 2011 report from
Oxfam refers to 227 million hectares acquired since
2000.16 Overall, however, it is very hard to gain a fulland global picture of how much land has been ‘grabbed’since 2007/08, apart from the fact that these investments
are extremely significant both in terms of the land area
covered and the scale of the investments.17 Regarding
the scale of the land rush, it is also worth highlightingthat it is a truly global phenomenon. While the continentthat is witnessing the greatest level of land grabbing isclearly Africa, similar extensive takeovers of large tractsof land by foreign investors have also been taking placein Asia, Latin America and the former Soviet countries.
Many of these land deals are directly affecting indigenous communities, who are then forced off of their lands.
13 Foreign Investment in Developing Country Agriculture – Issues,
Policy Implications and International Response. David Hallam.
Paper presented at the Global Forum on International Investment, OECD, 7-8 December 2009.
14 Von Braun, J. and Meinzen-Dick (2009), R., ‘“Land grabbing” byforeign investors in developing countries: risks and opportunities’.
Policy Brief No. 13, April. Washington, DC: International Food
Policy Research Institute.
15 For detailed figures see the Land Matrix Project, see: http://www.
landmatrix.org/en/
16 Oxfam (2011), “Land and Power: The growing scandals surrounding the new wave of investment in land”.
17 See: Lorenzo Cotula & Emily Polack (2012) “The global land rush:
what the evidence reveals about scale and geography”, IIED
Briefing, Apr 2012, available at: http://pubs.iied.org/17124IIED.
html

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1.2. Investors and industries leadingthe ‘land grab’
In terms of the kinds of investors involved, media andcivil society reports largely point to the large investments
emerging from China, India, South Korea and the Gulf
States, which are among those at the forefront of this agricultural expansion, as they seek to produce food overseas for their growing populations. However, according
to a 2009 analysis from the United Nations Conference
on Trade and Development, the biggest country investors in terms of outward foreign direct investment (FDI)
stock in agriculture are, in descending order: the UnitedStates, Canada, China, Japan, Italy, Norway, Korea,
Germany, Denmark and the United Kingdom.18
Moreover, regarding the investors, it is worth bearing
in mind that most deals are private investments. This notably involves many Western banks and financial investors seeking alternatives to volatile international financial
markets. In terms of the relationship between investors,
financial institutions, agribusiness and governments, it isoften hard to get a clear picture of who is who between
grabbers, investors and destination markets given that,in most situations, the land deals lack transparency andalso involve multiple layers of different actors. However,it seems that two main types of industry are leading theway: agribusiness and green investors.
Agriculture, and more particularly agribusiness,animal feedstock and agro-fuels, seems to be the main
driver of the land rush. It is being driven by a number of
profound and long-term changes in the fast-growing demand for food and energy. As noted by the Transnational Institute, the expanding volume and changing diet andconsumption patterns of fast-growing, large economies
and notably the ‘meatification of diets’, which requires
ever increasing use of land to produce animal livestock,has a huge impact on the demand for land.19 In turn, thisattracts investments in land to produce soya and corn foranimal consumption. Likewise, the emergence of ‘flex
crops’20 has also had a major impact as land is being
acquired at a fast pace to produce such crops, to thedetriment of local food production.

18 See: United Nations Conference on Trade and Development(UNCTAD), World Investment Report 2009, Geneva, July 2009,p. 118.
19 Transnational Institute (2013) “The Global Land Grab: A Primer”(TNI, Agrarian Justice Programme, February 2013).
20 Flex crops are crops that have multiple uses (food, feed, fuel,industrial material) and which can be easily and flexibly interchanged: soya (feed, food, biodiesel), sugarcane (food, ethanol),oil palm (food, biodiesel, commercial/industrial uses), corn (food,feed, ethanol).

The forestry sector is also having a major impact
on the rapid expansion of large-scale land acquisitions,notably through fast-growing industrial tree plantations(ITPs). This has been seen in the acquisition of forestlands and their transformation for the production of‘valuable’ trees such as eucalyptus and pine, which arecommonly grown for their commercial value throughout
the world.21 One very significant change in the forestry
industry is that forestlands are now being acquired forthe large-scale production of biofuels, notably palm oil.
The current land rush is largely driven by ‘green investments’ since there has been a dramatic increase ininvestment in biofuels and carbon offsetting measuresin particular in the last few years. These ‘green investments’ are having a dramatic impact on the land rushas lands that could be used for green production areseen as a great and reliable source of investment forinvestors.
These investments in biofuels have also been
fuelled by the adoption of inter-State initiatives to develop green energy and carbon offsetting markets,
such as the EU targets on biofuels in its Renewable
Energy Directive, as well as carbon markets and offsets under approaches such as the European Trading
Scheme. This also includes international agency initiatives that support the development of green investment
or of a carbon market such as, for example, the WorldBank’s Forest Carbon Partnership Facility (FCPF).
These different targets for emissions reductions thatare emerging at national, regional and global levels
mean that the demand for biofuels will only increase in
the next few years.
One of the largest global initiatives is emerging
from the UN Reducing Emissions from Deforestation
and Degradation (REDD+) programme, which aims tocurb carbon emissions by paying developing countries
to protect forests. The programme has been re-developed several times over the last few years but reached
an important milestone in 2013 when delegates at theUnited Nations climate negotiations in Warsaw adopted
a framework that would allow REDD+ programmes tomove forward. Despite the fact that this programme ismeant to ensure that local communities are not negatively affected by the development of such a large-scalecarbon market, reports from the ground clearly indicatethat the reforms that have been put in place by most
governments have so far had a very negative impact.
The REDD+ programme has thus far done very little tohelp secure tenure rights for local forest communities,
21 M. Kroger (2012) “Global tree plantation expansion: a review”,
ICAS Review Paper Series No.3., p.5.

13

despite warnings from civil society groups that local land
rights would be critical for its success.22
There has also been a noticeable increase in theacquisition of lands for conservation purposes. Thisphenomenon has been labelled ‘green grabbing’.23 This
‘green grabbing’ includes acquiring lands for the development of ‘green’ markets such as forestry for carbon
offsetting, biofuels and ecotourism. Finally, another ever-expanding industry that is having a significant impact
on the current land rush is tourism. Massive investments
in tourism, notably across Africa, have meant that lands
have been acquired on a huge scale for game farms andsafari and hunting operations in several countries acrossthe region.
Overall, it is hard to distinguish all the sources ofland grabbing as there is a huge diversity of contexts at
the local level but it seems that the global movement for
the fast, large-scale and long-term acquisition of lands isdriven mainly by the agribusiness, forestry, biofuels andtourism industries. A study by the World Bank highlights
the fact that the vast majority of the investments in land
are thought to be for the production of food crops forexport although about one-third are understood to be
for plantations of biofuel crops.24 A global report commissioned by the G20 leaders in 2011, which was conducted by 10 international organizations including the
FAO, World Bank, OECD and World Food Programme,
found that the demand for food and feed crops and forthe production of biofuels is a significant factor in risingfood prices and food price volatility globally.25
Moreover, it is worth keeping in mind that significant
investment in agricultural and biofuel production also requires major investment in infrastructure such as roads,
ports and hydro-dams. In turn, these infrastructural investments also lead to displacement from the land andforced relocation. The current land rush for agribusinessand green investments is occurring alongside the increased grabbing of land for mining and oil explorationin regions not used to such investments. New mining

22 See: Rights and Resources Initiative, Briefing: Status of Forest
Carbon Rights and Implications for Communities, the Carbon
Trade, and REDD+ Investments (March 2014), available at: http://
www.rightsandresources.org/documents/files/doc_6594.pdf
23 See for example: James Fairhead, Melissa Leach & Ian Scoones(2012) “Green Grabbing: A new appropriation of nature?”, Journal of Peasant Studies, 39:2, 237-261.
24 World Bank (2010) “Rising global interest in farmland: can it yieldsustainable and equitable benefits?”, 8 September 2010. Washington, DC: The World Bank.
25 Price Volatility in Food and Agricultural Markets: Policy Responses, Policy Report including contributions by FAO, IFAD, IMF,
OECD, UNCTAD, WFP, the World Bank, the WTO, IFPRI and the
UN HLTF (2 June 2011).

technologies and the higher price of natural resourcesin recent years have pushed their demand to evenhigher levels than before. This high demand for natural
resources, coupled with new territories to be exploited,such as the new areas emerging under the ice cap in the
Arctic Circle, have meant that a ‘mining land grab’ is also
taking place in parallel with the so-called green grab.

1.3. Indigenous peoples and land
grabbing: main issues
Many are directly affected by the global rush for land
investment but indigenous peoples are particularly affected. For many indigenous communities across theglobe, the current wave of land grabbing is simply another chapter to be added to previous centuries of landdispossession. These large-scale land deals usually
result in the curtailing of customary or community access rights to lands, forest or natural resources, resulting in a loss of access to common land and waterways
used for activities such as hunting, gathering of forest
products, fishing and grazing. While many local communities across the globe, and especially in Africa, do
not hold formal title to their lands, indigenous peoples
are especially vulnerable to a lack of recognition of theirrights to land and natural resources. In most situations,indigenous peoples’ land rights are neither recognized
nor protected by governments. As noted by the United
Nations Inter-Agency Support Group: “the lack of formal
State recognition of traditional tenure systems marginalizes indigenous peoples further from the dominant society and leaves them more vulnerable to rights abuses.”26
So when an investor or a company negotiates a leasewith a government, the land rights of indigenous peoples
are simply ignored.
The notion of productivity of the land, which is meant
to support the flow of foreign investments and support
large-scale export industries, particularly affects many of
the indigenous communities whose systems of livelihood
production are based on sustainable methods of land
use perpetuated across the centuries. A justification forthis ignorance of indigenous peoples’ land rights relates
to a colonial narrative around the concept of ‘empty’, ‘va-

26 United Nations Inter-Agency Support Group, “Thematic Paper
on Lands, Territories and Resources” (Thematic Paper towards
the preparation of the 2014 World Conference on Indigenous
Peoples, July 2014), p. 4, available at: http://www.un.org/en/ga/
president/68/pdf/wcip/IASG_Thematic%20paper_Lands,%20territories%20and%20resources.pdf

14cant’ or ‘unused’ land. Historically, indigenous peoples
have been the main victims of such rhetoric, based on
the idea that their land is ‘unoccupied’ or ‘unproductively’
used. In many ways, the current land grabbing is basedon the same premise, which saw the occupation of land
by indigenous communities as not ‘civilised’ enough toconstitute ‘proper’ tenure of the land. This fiction, labelled‘terra nullius’ during colonial times, has been rejected as
racist and discriminatory by most legal systems acrossthe world. However, although once rejected, the theory
that some lands are not occupied when indigenous peoples live on them seems to be coming back, under theprecept of ‘unused’ or ‘vacant’ land, in order to justify theforced removal of indigenous peoples to make way forcommercial and industrial developments.
Through the United Nations, the international community recognized the legitimacy of indigenous peoples’
claims to land rights and self-determination with the
adoption of the UN Declaration on the Rights of Indigenous Peoples in 2007. However, the food and financial
crises of 2008 gave rise to a new wave of massive land
grabbing which largely ignored the indigenous peoples’
rights as proclaimed in the new declaration. For many indigenous communities, these huge investments in landfor commercial and industrial purposes are not only denying them access to their primary source of livelihood
but are also leading to deforestation and a change inthe biodiversity of their ancestral lands and territories.
Forest-reliant communities are badly affected as large
areas of the forest have been cleared to make space forthe large-scale production of food or biofuels. Some of
the most prominent cases involve physical harassment,
intimidation and violence against indigenous peoples.
The current land grabbing is yet another tragic chapter in the history of indigenous peoples’ dispossession
from their land. Given the scale and universality of thecurrent land grabbing, it is essential that indigenous organizations, supportive civil society, and also organizations that do not traditionally work to support indigenous
peoples’ rights, realize that this chapter of global ‘land
grabbing’ could prove extremely detrimental to all recent
progress made in the recognition and protection of indigenous peoples’ land rights.

SECTION 2: COUNTRY OVERVIEW

T

he following section aims to offer an overview and initial
analysis of the impact of land grabbing on indigenous
peoples’ rights in selected countries. It is based on presentations made by IWGIA’s partners from Tanzania, Kenya,
India, Myanmar, Colombia, Chile and Russia during the IWGIA seminar on land grabbing held in October 2014. Thiscountry focus does not mean that land grabbing is not seriously affecting indigenous communities in other countries
but rather that the situation in these countries can serve toillustrate what is happening on a more global scale. The aim
is not to provide a detailed and comprehensive review but
rather to provide some initial reflections on land grabbing
and its impact at the local level with a view to triggering amore in-depth analysis. Each country section provides: (1)an overview of the indigenous peoples involved; (2) an illustration of how land grabbing is directly affecting them; (3)an overview of the relevant national legal framework in thecontext of land grabbing.

2.1. Land grabbing and indigenous
peoples in Africa
As highlighted in the first section, sub-Saharan Africancountries have been particularly affected by land grabbing. A 2009 study entitled “Land Grab or Development
Opportunity?” jointly produced by the Food and Agriculture Organization of the United Nations (FAO), the International Fund for Agricultural Development (IFAD) andthe International Institute for Environment and Development (IIED) analysed land acquisitions of 1,000 hectares
or more between 2004 and 2009 in Ethiopia, Ghana,
Madagascar and Mali. The study concluded that, ingeneral, recent national land policies, stakeholder interactions and privatization schemes have all interacted
to facilitate large-scale land acquisitions across thecontinent, which has witnessed the massive acquisitionof land as part of the global land rush.27 The following
analysis examines the situation in two countries, Tanzania and Kenya, which have been experiencing intensive
land grabbing over the last few years.

27 Cotula, L., Vermeulen, S., Leonard, R., and Keeley, J. (2009)“Land Grab or Development Opportunity?”, Agricultural Investment and International Land Deals in Africa (2009).

15

Tanzania28
The indigenous peoples of Tanzania include the Maasai,
Barabaig, Akie, Taturu and Hadzabe. The first twogroups are predominantly pastoralists while the lattercomprise forest-dwelling hunter-gatherers. Pastoralism
constitutes an important source of livelihood for many
communities that rely on livestock grazing. The rightsof pastoralist communities have been particularly affected by the recent waves of large-scale land grabbing
as these have notably been taking place on pastoralists’lands.29 An important project which has affected indigenous peoples is the Southern Agricultural Growth Corridor of Tanzania (SAGCOT). Covering approximately
one-third of mainland Tanzania’s total land area (including all administrative regions, namely Morogoro, Iringa,
Mbeya, Ruvuma, Lindi and Mtwara), the SAGCOT project links Dar-es-Salaam port to Malawi, Zambia and the
Democratic Republic of Congo. While the idea behind
SAGCOT was adopted during the World Economic Forum for Africa held in Dar-es-Salaam in 2010, it is partof the broader UN General Assembly’s 2008 proposal
for the “African Agricultural Growth Corridor”. At thedomestic level, SAGCOT fits well with Kilimo Kwanza
policy (Agriculture First), as the former being the vehicle
for implementing the latter. Kilimo kwanza is a national
policy aimed at bringing about agricultural transformation, modernisation and commercialization, which wasformed by the Tanzania National Business Council(TNBC).30
Under this national policy, the acquisition of land for
agriculture, and also biofuel production, has been dramatically increasing. By 2009, an estimated four million

28 This section is notably based on the paper presented by Elifuraha
Laltaika, “Land Grabbing and Indigenous Peoples: A Case Studyof the Southern Agricultural Growth Corridor of Tanzania (SAGCOT)” (IWGIA Seminar on Land Grabbing – October 2014).
29 See “Tanzania Pastoralists threatened: eviction, human rights violations and loss of livelihood” (IWGIA Report 23 – January 2016).
30 According to the SAGCOT Investment blue print, the aim is toinvest US$ 2.1 billion over a twenty-year period for the purposeof tripling the area’s agricultural input. In this connection, while
commercial farmers currently farm only 110,000 hectares, mainly
for sugarcane and tea production, SAGCOT expects to raise thenumber to 350,000, insisting that much of it will be farmed bysmall-scale farmers.

Impoverished pastoralists and starving livestock in Morogoro region. Photo: IWGIA archive

hectares had already been requested from the Tanzanian government, through the Tanzania Investment
Centre, for biofuel projects, with around 640,000 ha having been formally allocated.31 The lands in question areoften acquired to the detriment of the local populations,
who are losing important sources of livelihood, and who
do not usually receive proper compensation for their lossof land. Such large-scale acquisitions of land are usually based on the wrong assumption that the concernedlands constitute ‘empty’, ‘underused’, ‘idle’ or ‘degraded’
lands, despite the fact that they are often part of indigenous peoples’ customary and ancestral territories, andused as an essential source of livelihood.
Current legislation establishes that foreign investors
must acquire land through the Tanzania Investment Centre (TIC). According to TIC guidelines, any investor must
present a business plan before applying for land. The TIC
can then allocate land from its ‘land bank’. In theory, theinvestor should then be introduced to the respective villagers who have an interest in the concerned lands topresent a proposal to the village council. If accepted, aprocess of land mapping should then be undertaken to

identify, demarcate and value the land. However, there
are several problems with such a process. An in-depth
study and primary-based research led by the Stockholm
Environment Institute in 2013 highlighted in detail how national land-use planning policies have created ambiguities
that are likely to be exploited by powerful investors.32 Firstof all, many firms are circumventing the official process
and negotiating directly with local communities. Secondly,
even if the formal process is followed, one of the problems
is that once village land has been leased to investors, local people no longer have legal rights pertaining to it until
ownership returns to the village, normally after a 99-yearlease. Thirdly, even when compensation is provided,villagers have highlighted that most people who have
moved to make way for investors have been offered only
small amounts of poor-quality land in return.
Agriculture and biofuel are not the only industries
causing large-scale land grabbing in Tanzania as tourism also accounts for a large proportion of the investment in the country. There are several examples ofcases where plans to increase tourism in Tanzania are
directly resulting in the massive and large-scale grab-

31

32

16

Sulle, E. & Nelson, F. (2013), “Biofuels, land tenure, and rural
livelihoods in Tanzania” (London: International Institute for Environment and Development, 2009). And see: Emmanuel Sulle(2013) “The Status of Biofuels Projects in Tanzania” (Overseas
Development Institute, March 2013).

Atakilte Beyene, Claude Gasper Mung’ong’o, Aaron Atteridge,
and Rasmus Kløcker Larsen (2013) “Biofuel Production and its
Impacts on Local Livelihoods in Tanzania: A Mapping of Stakeholder Concerns and Some Implications for Governance” (Stockholm Environment Institute, Working Paper 2013).

Maasai community in Morogoro. Photo: IWGIA archive

bing of indigenous territories. This often takes the formof acquiring land to provide more wildlife corridors andparks which, in turn, will be used for tourism purposes.
One of the most well-known illustrations of this situation
relates to the Maasai of Loliondo in Ngorongoro district,
who have been resisting the appropriation of their land
for the establishment of a wildlife corridor. The proposed
wildlife corridor would expand tourism and big gamehunting. The development of the corridor means that
the Maasai community will lose over 1,500 square kilometres of essential dry season grazing land. The maineconomic activity and source of livelihood of the peopleof Loliondo is pastoralism – moving livestock between
seasonal grazing areas, and so losing access to thesegrazing lands will mean losing their main source of livelihood. The situation came to a head in 2009 when the
Tanzania Field Force Unit intervened to forcibly evict up
to 300 households from the Maasai communities. During the eviction, the villagers lost their property, including
cows and goats, and witnessed their clothes, money andutensils destroyed by fire.33 While the situation in the following years calmed down, and the Prime Minister in2013 assured the people that the land belongs to thepeople as villages, the conflict intensified again in 2016
when new demands for eviction of the people emerged
through the Ministry of Natural Resources and Tourism.
In August 2017 forced evictions took place again, resulting in serious human rights violations.
There are numerous examples of situations in Tanzania where wildlife and tourism expansion are resulting
in the grabbing of indigenous lands. While the situationin Loliondo has received a vast amount of national andinternational attention, this situation is unfortunately not
an isolated one. Over the last two years, 2015 and 2016,
there have been several reported cases of forced evictions to make way for tourism and wildlife developments.34
It is worth noting that the private sector and foreign
investors are playing a very central role in these evictions and land grabs. A good illustration of the combination of forced eviction by the government and largescale acquisition of land by private foreign interests canbe found in the situation faced by some of the Maasai
communities of Mondorosi, Soitsambu and Sukenya.
These communities have been facing a loss of land and

33 See: FEMACT’s Loliondo Fact Finding Report of August 2009;and see: Report by the Special Rapporteur on the situation ofhuman rights and fundamental freedoms of indigenous people,
James Anaya, [Ref: A/HRC/15/37/Add.1, 14/9/2010], paragraph
445, page 181.

34 See Minority Rights Group (2016) “Tanzania: Protecting Maasairight to land”: http://minorityrights.org/law-and-legal-cases/
mon­dorosi-sukenya-and-soitsambu-village-councils-v-tanzaniabreweries-limited-tanzania-conservation-ltd-ngorongoro-districtcouncil-commissioner-for-lands-and-attorney-general-tanzania/

17

Pastoralists in Tanzania. Photo: IWGIA archive

forced eviction due to the action of Thomson Safaris, aUS-based tourism operator offering deluxe safari tourism services. The villagers’ struggle against Thomson
began in 2006 when Tanzania Conservation Ltd (TCL)
acquired 12,617 acres of land known as Sukenya Farm,which originally belonged to the Maasai.35 There havebeen reports of forced and violent evictions of the local
communities. Again, the situations mentioned here are
merely illustrations of the overall situation, as there aremany other examples of forced evictions of indigenous
communities in Tanzania for the purpose of using theirland for large-scale farming, tree plantations (notably
biofuel production), conservation areas, tourism andcom­mercial game hunting.
The current phenomenon of land grabbing is supported by weak land rights legislation that does not provide adequate protection or recognition of indigenous
land rights. Despite having one of the most advanced
land rights framework, providing some recognition ofcustomary ownership, Tanzania’s national legislation remains weak and inadequate when it comes to the largescale acquisition of land by foreign investors. The main

35 TCL is owned by the same American businessmen as Thomson
Safaris, a Watertown-based company that runs luxury tours on
the disputed property, which it has developed into a private nature
reserve.

18

laws governing land tenure and ownership in Tanzania
are the Land Act No. 4 and the Village Land Act No.
5 respectively. The Interpretation section of the Village
Land Act stipulates that village land means the land declared to be village land in accordance with Section 7of the Village Land Act. The main threat posed to indigenous pastoralists and hunter-gatherers by this law
relates to the definition of ‘General Land’ as provided
for in the Land Act. This law defines ‘General Land’ asmeaning “all public land which is not reserved land orvillage land and includes unoccupied or unused villageland”. As noted by many indigenous organizations: “Thisprovision runs contrary to land-use patterns by pastoralists and hunter-gatherers. Pastoralism, for example,
requires movement from a point of resource abundance
to the point of resource scarcity. In the course of these
movements, pastoral ancestral land is regarded as unused and hence susceptible to grabbing for other land
uses.”36 Moreover, the recent revision of the provisions
36 Shadow report concerning the situation of the economic, socialand cultural rights of indigenous pastoralists and hunter-gatherers of the United Republic of Tanzania, submitted by the Coalitionof Indigenous Pastoralist and Hunter Gatherer Organizations.
Combined initial, second and third periodic reports of the United
Republic of Tanzania submitted to the International Covenant on
Economic, Social and Cultural rights (UN doc E/C.12/TZA/1-3, 28
March 2011) on the occasion of the 48th session of the Committee on Economic, Social and Cultural Rights.

of the Wildlife Conservation Act 2009 has further amplified this lack of land rights protection. Section 21(1) of
this law provides that: “Any person shall not, save withthe written permission of the Director [of Wildlife] previ-

ously sought and obtained, graze any livestock in any
game controlled area.” In practice, this means that indigenous pastoralists could be forcibly removed from theirlands when such land is designated as wildlife areas.

Kenya37

Women from the Samburu people who might be effected by the LAPSSET corridor project. Photo: IWGIA archive

In Kenya, the peoples who identify with the indigenous
movement are mainly pastoralists and hunter-gatherers,
as well as some fisher peoples and small farming communities. Pastoralists are estimated to comprise 25%of the national population, while the largest individual
community of hunter-gatherers numbers approximately
79,000.38 Both pastoralists and hunter-gatherers faceland and resource tenure insecurity, poor service delivery, poor political representation, discrimination and exclusion. Land grabbing has had a dramatic effect on land
tenure for many of the country’s indigenous communities in the last few years. Land grabbing has taken many
forms in Kenya but, like other countries in the region,
37 This section is notably based on the paper presented by Kanyinke
Sena “Indigenous Peoples’ Rights to Land and Natural Resources,
Investment and Land Grabbing: The case of the LAPPSET Corridor, Kenya” (IWGIA Seminar on Land Grabbing – October 2014).
38 IWGIA (2016) “The Indigenous World 2016”, available at: http://
www.iwgia.org/publications/search-pubs?publication_id=740

19

it is driven mainly by large-scale agribusiness developments, the quest for biofuels, geothermal production,
wildlife conservation, tourism, mining, and infrastructuredevelopment. This includes the Lamu Port Southern
Sudan-Ethiopia Transport (LAPSSET) Corridor project.
The Government of Kenya has been very proactively
supporting increased foreign investment in these sectors. An important driver of such a move is embedded in
the national economic development plan “Vision 2030”,
which aims to support the development of “a globallycompetitive and prosperous nation with a high quality oflife by 2030”.39 The government has made foreign direct
investment in agribusiness a key driver of such a development plan.
The key investments of the LAPSSET corridor project include a seaport at Kenya’s coastal town of Lamu,

39 See: http://www.vision2030.go.kea road, a railway and oil pipeline from Lamu to Juba in
South Sudan with branches running from Isiolo (Kenya)
to Addis Ababa (Ethiopia) and from Hoima in Western
Uganda to connect with the LAPSSET oil pipeline in Juba,
South Sudan. Oil refineries will be constructed in Lamu
and Isiolo while resort cities will be developed in Lamu,
Isiolo and Turkana. Two large dams will also be constructed in High Grand Falls along the River Tana and at the
Crocodile Jaws in Isiolo/Samburu border. All the required
investments in land acquisition will have, and are alreadyhaving, a negative impact on several indigenous communities. Potential income from LAPSSET projects, corrupt
land deals coupled with pains from historical injustices
has heightened inter-community tensions and conflicts
along the LAPSSET corridor over the last few years.
There are many examples of large land leases toforeign investors in Kenya, many of which have led toland dispossession of indigenous peoples. An exampleof how the land grabbing is affecting indigenous peoples
is illustrated through the situation faced by the Sengwer,
an indigenous community of 33,187 members who have
inhabited the Cherangany Hills in Kenya’s Rift Valley
for centuries. Since 2007, successive Kenyan governments have threatened the Sengwer communities inthe Embobut forest with eviction. The pretext for theeviction is the claim made by the authorities that theindigenous Sengwer are allegedly responsible for theincreasing degradation of the forest. In 2013 and 2014,
the government accelerated its process of forced eviction. A deadline for residents to leave the forest expiredin early January 2014, prompting the most recent spateof violence and forced evictions. The Forest Peoples
Programme (FPP) reported that over a thousand homes
had been torched by the government’s Kenya Forest
Service (KFS), aimed at forcibly evicting 15,000 Sengwer indigenous people from their ancestral homes in the
Embobut forest and the Cherangany Hills.40
The reason behind the forced eviction shows that thepretext of environmental protection is in reality hiding acommercial venture. As noted in an article in the Guardian, a UK newspaper, published in July 2014: “Effectively,
the government is permitting powerful logging companies
to accelerate deforestation to buoy the Kenyan economy
while systematically persecuting indigenous communities
whose environmental impact is comparatively negligible.”41
40 Forest Peoples Programme (2014) “Kenyan government’s forced
evictions threaten cultural survival of the Sengwer”, FPP newsletter: 14 February, 2014.
41 Nafeez Ahmed (2014) “World Bank and UN carbon offset scheme‘complicit’ in genocidal land grabs – NGOs Plight of Kenya’s indigenous
Sengwer shows carbon offsets are empowering corporate recolonisation of the South”, The Guardian, 3 July 2014.

20

This notably involves co-optation between the government
and a logging company but also shows longer plans to provide space for biofuel production. What the research demonstrates is that this eviction is part of the massive global
investment to produce biofuels. The World Bank’s Natural
Resource Management Programme (NRMP) with the Kenyan government, launched in 2007, has involved funding
for projects in the Cherangany Hills under the UN’s Reducing Emissions from Deforestation and Forest Degradation(REDD) programme, including ‘financing REDD+ readinessactivities’ some of which began in May 2013. It seems thatthe rush to evict the communities relates to such preparation for the REDD+ prospects.
Land grabbing has been facilitated by weak and inadequate land tenure legislation as well as a politically
centralized and corrupt process.42 Until very recently, thedifferent post-independence governments of the country
maintained the colonial model of ‘trust land’. Under thisnotion of ‘trust land’, land that may belong to a community is held in trust by a county council on behalf of thelocal inhabitants as long as the land remains un-adjudicated or unregistered. Once it is allocated or registered,it becomes private land, belonging to the person/entitythat holds the registration. Very often, these lands heldin trust are actually lands on which indigenous peoples
have lived for centuries. This notion of trust land has
allowed the government to dispossess these communities by allocating their land to private interests, all in thename of the ‘public interest’. Much of the land that has
been leased to foreign companies or foreign investors(notably foreign states) is actually land that is inhabitedand customarily-owned by indigenous peoples. As noted
in an in-depth study on the situation of land grabbing in
Kenya, led by the International Land Coalition (ILC) in
2011, land grabbing has been fuelled by the ‘disappearance’ of large tracts of public land and the enormous
wealth accumulated by elite members of Kenyan society.43 The study reveals that “these allocations involve
processes that range from the questionable to the blatantly fraudulent or illegal; these processes depend on
the type of land targeted. Recurring characteristics are
the abuse of public office and the manipulation of legal
processes to obtain or allocate public land for personal
gain or to ensure political patronage”.44

42 See: Kenya National Commission on Human Rights (2006), “Unjust enrichment: the making of land grabbing millionaires (Kenya
National Commission on Human Rights; Kenya Land Alliance,2006).
43 Erin O’Brien (2011) “Irregular and illegal land acquisition by
Kenya’s elites: Trends, processes, and impacts of Kenya’s landgrabbing phenomenon” (International Land Coalition, 2011).
44 Ibid., p. 1.

The LAPSSET corridor project operates in land inhabited by pastoralists in northern Kenya. Photo: IWGIA archive

Pastoralists’ houses burned down to make way for geothermal energy projects. Photo: IWGIA archive21

In terms of the legal framework, the adoption of a
new constitution in 2010 marked an important turning
point in terms of both land rights and indigenous peoples’ rights. Article 63 guarantees the rights of communities to their lands and territories. It furthermore statesthat community land consists of land lawfully held, managed or used by specific communities as community
forests, grazing areas or shrines and that it includes
ancestral lands and lands traditionally occupied byhunter-gatherer communities. The new constitution thus
re-categorizes land and offers a range of opportunities
for supporting the local management of natural resources. Public Land is collectively owned and managed onbehalf of the people by the National Land Commission.
Community Land is a new category of land (replacing
Trust Lands and Group Ranches). Community Land will
also include ancestral lands and lands traditionally occupied by hunter-gatherer communities. Following on
from this new constitutional framework regarding land
rights, the National Land Commission Act was adopted
in 2012 to establish a new National Land Commission.
The Commission has a broad mandate which notably
includes the design and recommendation of a national
land policy to the government as well as advising thegovernment on a comprehensive programme for theregistration of land titles (both collective and individual)
throughout the country. The Commission also has amandate to initiate investigations, at its own initiative or
following a complaint, into present or historical land injustices and recommend appropriate redress.45
After prolonged negotiations, the Community Land
Act was enacted into law in September 2016. Under thisnew Act, communities can apply for formal titles as the
Act recognizes customary land rights, including the customary right of occupancy. The Act makes it possible forcommunities to apply for formal land titles and get theircustomary community land rights recognized and registered. However, despite the many promises concerning
community land claims, many indigenous communities
have been disappointed by the restriction put within the
Act which could result in denying them their fundamental
rights to land and natural resources.46 It notably fails to
restitute indigenous peoples’ lands and territories previously taken to create national parks and forest reserves.

45 For full details of the Commission’s mandate, see: http://www.nlc.
or.ke/about/mandate-overview/
46 Under Section 13 (2) of the Community Land Act, 2016 “Any land
which has been used communally, for public purpose, before thecommencement of this Act shall upon commencement of this Act
be deemed to be public land vested in the national or county Government, according to the use it was put for.”22

Instead, it prescribes that community land previously
used for a public purpose before the commencement of
the Act automatically reverts to the national or county
governments for the land to continue serving the public
purpose it was serving.47 Overall, the new Constitution
and the new Community Land Act provide significant
positive changes to a legal framework that allowed massive land grabbing in the period preceding the new Constitution. However, despite these progressive constitutional provisions and the establishment of the new Land
Commission, indigenous peoples continue to suffer as aresult of the State’s lack of compliance with these provisions and with legal rulings on land issues. Recently,
various indigenous groups such as the Endorois, Ogiek,
Maasai and Sengwer witnessed first-hand the glaring
back-handed treatment meted out to indigenous peoples in Kenya with regard to their rights to land and natural resources.

2.2. The ‘great Asian land grab’ andindigenous peoples
Land grabbing has also been dominating the headlines
across Asia, where it has even been referred to as the‘Great Asian Land Grab’.48 Many countries have been
witnessing large-scale acquisitions of land by foreign
investors. As noted by the International Food Policy Research Institute: “Ever since high food prices in 2007 and2008 raised the prospect of food insecurity for countries
without much farmland, Kuwait, Qatar, Saudi Arabia andthe United Arab Emirates (UAE) have scoured Asia forland.”49 Many countries with large indigenous populations have been the target of large-scale agribusiness
investments across the region. For example, in 2009
in the Philippines alone, Bahrain secured 10,000 ha for
agro-fishery, Qatar leased 100,000 ha, and an unknown
company from China leased 1.24 million hectares.50 This
seems to be a common story across the region as countries in South-East Asia as well as South Asia are thetargets of large-scale investment in land.

47 Section 13 (2) Community Land Act, 201648 Mike Eckel (2011), “The Great Asian Land Grab: How a WorldBank program helped displace tens of thousands of urban poor”,
Foreign Policy, 13 May 2011.
49 See: IRIN, “ASIA: Land grabs threaten food security”, 10 June2009 (IRIN), available at: http://www.irinnews.org/report/84785/
asia-land-grabs-threaten-food-security
50 See: “Bahrain and Philippines sign agricultural project agreement”, Bahrain News Agency, 4 February 2009

India51

Adivasis in Jharkhand. Photo: Christian Erni

In India, 461 ethnic groups are recognized as Scheduled
Tribes, and these are considered to be India’s indigenous peoples. In mainland India, the Scheduled Tribes
are usually referred to as Adivasis, which literally means
indigenous peoples. With an estimated population of
84.3 million, they comprise 8.2% of the total population.
The largest concentrations of indigenous peoples arefound in the seven states of north-east India, and theso-called ‘central tribal belt’ stretching from Rajasthan
to West Bengal.
Land rights and access to land is a central concern
for most communities, with 90% of the landless poor belonging to either the Scheduled Castes (Dalits) or Scheduled Tribes (indigenous peoples). Land dispossession intribal areas across the country has been extremely highin recent years with an estimated 40-50% of displaced
persons being indigenous peoples. The drivers of land
grabbing in India mainly relate to so-called ‘development projects’ – dams, mining, natural resource extraction, ports, roads, and infrastructure projects, but also5123This section is notably based on the paper presented by Gladson
Dungdung, “Development over Dead Bodies” (IWGIA Seminar on
Land Grabbing – October 2014).

the huge development of Special Economic Zones. The
Central India Tribal Belt, which stretches from Gujarat in
the west up to Assam in the east and encompasses thestates of Madhya Pradesh, Chhattisgarh and Jharkhand,
has been particularly affected by the large-scale acquisition of land for mining. While mining is not a new activity
in the region, over the last few years the governmenthas been acquiring large tracts of land for foreign investors under leasing arrangements. This is affecting
indigenous peoples, who constitute a large majority of
the rural populations in these states and who often findthemselves on the land that is being leased to foreigncompanies.
One example of the correlation between foreign direct investment, large-scale land grabbing and government-forced evictions of local indigenous communities
is the development of a massive steel plant, which isgoing to include iron ore mines, roads and railways, acaptive port, a captive power plant, and an integrated
township in Odisha. The project involves the South Korean Pohang Iron and Steel Company (POSCO). Worthapproximately US$12 billion, the POSCO-India project
represents one of the largest single foreign direct investments in India to date, and it will require more than

Adivasis in Jharkhand. Photo: Christian Erni

12,000 acres of land, including approximately 4,000
acres for an integrated steel plant and captive port in anarea that is home to forest-dwelling communities and avibrant and sustainable local economy centred aroundbetel leaf cultivation. In 2005, the Odisha government
and POSCO signed a Memorandum of Understanding inwhich the government agreed to acquire and transfer tothe company 4,004 acres of land for the construction of
the steelworks project.52 It is estimated that at least 22,000
people will be directly affected by the acquisition of land
for this project. Many of these individuals belong to the
local indigenous communities. There have been many reports of forced and violent evictions, as well as a total lackof consultation and compensation offered to the communities concerned.53 This case is just one illustration of themassive increase in large-scale acquisitions of land aimed
at allowing more foreign companies to develop mining industries in the region. It is also an illustration of the lackof legal protection and legal enforcement mechanisms forprotecting indigenous peoples’ land rights.

52 See: Memorandum of Understanding Between the Governmentof Orissa and POSCO for Establishment of an Integrated Steel
Plant, 22 June 2005, available at http://www.orissa.gov.in/posco/
POSCO-MoU.htm
53 See: International Human Rights Clinic, ESCR-Net, “The Price ofSteel: Human Rights and Forced Evictions in the POSCO-India
Project” (New York, NYU School of Law, 2013).

24

Over the years, India has developed a specific legal
framework for the protection of the Adivasis. The wholelegal edifice regarding indigenous peoples’ rights in India
is based on the Fifth and Sixth Schedules of the Constitution, which recognize indigenous peoples’ rights to landand self-governance. However, it is only recently that the
government has clearly put into law some of its ensuing
obligations in terms of recognizing and protecting the indigenous communities’ rights to land. This largely comesfrom the adoption in 2006 of the Scheduled Tribes andOther Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA). The Act notably guarantees
the “Right to hold and live in the forest land under theindividual or common occupation for habitation or for
self-cultivation for livelihood by a member or membersof a forest-dwelling Scheduled Tribe or other traditional
forest dwellers”. The Act protects individuals’ and communities’ land rights in forested areas, and applies to two
distinct groups of forest-dwelling people—members of
Scheduled Tribes who primarily reside in and depend on
the forest for their livelihood and “other traditional forest
dwellers”. Section 3(1) grants individuals and communities the right to “hold and live in the forest land under
the individual or common occupation for habitation or for
self-cultivation for livelihood”; the “right of ownership access to collect, use, and dispose of minor forest produce
which has been traditionally collected within or outside

Adivasis in Jharkhand. Photo: Christian Erni

village boundaries”; and the “right to protect, regenerateor conserve or manage any community forest resource
which they have been traditionally protecting and conserving for sustainable use”.
However, the Act establishes a complex and highlybureaucratic system of recognition. Section 6(1) of the
Act provides that the Gram Sabha, or village assembly,
shall initially pass a resolution recommending whoserights to which resources should be recognized. This
resolution is then screened and approved at the levelof the sub-division (or Taluka) and subsequently at the
district level. The screening committee consists of three
government officials (Forest, Revenue and Tribal Welfare departments) and three elected members of thelocal body at that level. While many hopes were raisedwith the adoption of the Forest Act, which promised indigenous communities recognition of their rights overland, many are thus now criticizing the Act for its lackof impact on their rights. There has been a general lackof willingness to implement the Act on the part of implementing bodies. One issue relates to the failure toprocess land claims under this Act. As noted in IWGIA’s
2014 Yearbook, according to information available from
the Ministry of Tribal Affairs, a total of 3,539,793 claims
had been received across the country by 30 September 2013.54 Of these, a total of 3,078,483 (86.96 % of25

the total received) have been disposed of, out of which
1,406,971 titles (1,386,116 individual and 20,855 community titles) or 39.74 % were distributed and 1,671,512
claims (1,661,325 individual and 10,187 community titles) or 54.29 % were rejected. Eleven states, namely
Uttarakhand, Bihar, Karnataka, Himachal Pradesh, Uttar
Pradesh, West Bengal, Maharashtra, Madhya Pradesh,
Chhattisgarh, Jharkhand and Assam had rejection ratesof over 50 %.
The other important piece of legislation in the context
of land grabbing comes from the very recent adoption of
special legislation regarding compensation for land acquisition. In 2013, Parliament adopted the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act (LARR Act), which
regulates land acquisition and provides rules for granting compensation, rehabilitation and resettlement topersons affected in India. This Act replaces the outdated
and drastic Land Acquisition Act, which was adopted in1894 during the British colonial era. This new Act establishes provisions to provide fair compensation to those
whose land is taken away, brings transparency to theprocess of land acquisition and assures rehabilitation of
those affected. The Act is applicable when:
54 IWGIA (2014) The Indigenous World 2014, India; available at:
http://www.iwgia.org/images/stories/sections/regions/asia/documents/IW2014/IndiaIW2014.pdf

•

•

•

government acquires land for its own use, holding or control, including land for public sector
undertakings.
government acquires land with the ultimate purpose of transferring it to private companies fora stated public purpose. The purpose of LARR
2011 includes public-private partnership projects
but excludes land acquired for state or national
highway projects.
government acquires land for immediate anddeclared use by private companies for a public
purpose.

The LARR Act has special provisions for the Scheduled Tribes (STs) and Scheduled Castes. The Act does
recognize that a ‘land owner’ can be a person who isgranted forest rights under the Scheduled Tribes andOther Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 or under any other law currently inforce. Article 41 states that: “As far as possible, no acquisition of land shall be made in the Scheduled Areas”
and “Where such acquisition does take place it shall bedone only as a demonstrable last resort” (paragraphs 1
and 2). Furthermore, it provides that in case of acquisition or alienation of land in the Scheduled Areas, theprior consent of the local governments concerned (Gram
Sabha or the Panchayats or the autonomous District
Councils) must be obtained in all cases.
In a land acquisition project that involves the involuntary displacement of Scheduled Castes or Scheduled
Tribes, a development plan must be prepared including,among other things, the details of the procedure for selling land and a programme for developing alternatives for
fuel, fodder and non-timber forest products on non-forest
lands. The Act defines the procedures for paying compensation and provides that the affected families shallbe resettled “preferably in the same Scheduled Area in
a compact block so that they can retain their ethnic, linguistic and cultural identity” (paragraph 7). Furthermore,
Article 41 includes a provision by which any alienation oflands belonging to members of the Scheduled Tribes and
Scheduled Castes conducted in disregard of existing laws
and regulations “shall be treated as null and void” (Article
9). It deals with fishing rights in hydroelectric project areas
and additional compensation payments in case of resettlement outside the district. Article 42 ensures the continuation of reservation benefits for members of Scheduled
Tribes and Scheduled Castes in the resettlement areaand provides that families belonging to Scheduled Tribes
who are residing in areas covered by the Fifth or Sixth
Schedule to the Constitution and who are relocated outside those areas will continue to enjoy the “statutory safe-

26

guards, entitlements and benefits” in their resettlement
areas regardless of whether the resettlement area is a
Fifth or Sixth Schedule area or not. Finally, this article provides that any rights obtained by a community under theprovisions of the Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act, 2006
“shall be quantified in monetary amount and be paid to
the individual concerned who has been displaced due tothe acquisition of land in proportion with his share in such
community rights” (Article 3).
However, with the increased investments and acquisition of lands in favour of mining in the central region of India, in most situations these legal principles
remain dead paper, not having any positive impact on
indigenous communities who are usually facing forced
removal with no compensation.

Myanmar55
Myanmar is a diverse country encompassing over 100 different ethnic groups. Indigenous communities, referred toas ‘ethnic nationalities’, include the Shan, Karen, Rakhine,
Karenni, Chin, Kachin and Mon, and they face discrimination, harassment and often violence. Many of these communities have been the victims of serious human rights
violations as part of the government’s oppression of ethnic
nationalities. After decades of armed conflict, the military
regime negotiated a series of ceasefire agreements in theearly to mid-1990s.56 While these resulted in the establishment of special regions with some degree of administrative autonomy, the agreements also allowed the military
regime to progressively expand its presence and benefit
from the unchecked exploitation of natural resources in
ethnic areas. In this context, the government’s policy offorced assimilation of the ethnic communities is beingcombined with widespread displacement.
The term ‘land grabbing’ has now become commonly
associated with the large influx of foreign investment thatis reaching Myanmar. While the ongoing reform process
has raised hopes, it has also brought with it large investments from abroad. Joining the global land rush that followed the 2007 food and financial crisis, Myanmar has
witnessed unprecedented flows of foreign investment into
agribusiness, notably for rubber, palm oil and paddy rice.

55 The section is based on a presentation made by Naw Ei Ei Min,
“Myanmar as newly open country to donors and foreign investment and possible impact on indigenous peoples’ lands” – (IWGIA
Seminar on Land Grabbing – October 2014).
56 Some of the ceasefires have now been broken. For updated information, see the most recent press releases on IWGIA’s website.

A village of the Kayan Kangan people in Kayah State. Land of neighboring communities has been grabbed by the army. Photo: Christian Erni

The combination of very productive lands, a political landscape favouring foreign investors, and the international
community’s keen support for massive economic investments in the country has put Myanmar at the centre of the
global land rush. To support such investments, a Foreign
Investment Law was adopted in 2012 (Union Parliament
Law No XXI) to support the entry of foreign direct investment into the country, especially in the natural resource
extraction and agribusiness sectors. For example, thelaw ensures land-use rights up to 70 years for approved
foreign investors. In the same year, the government also
enacted the Special Economic Zone (SEZ) Law, which
provides several incentives for foreign investors, including
up to 75 years of land-use rights for large-scale industry,low-income tax rates, exemption from import duties for
raw materials, machinery and equipment, no restriction
on foreign shareholding, relaxed foreign exchange control, and government security support.57
These new land investments have failed to consult
with local ethnic communities. The exploitation of natural resources in ethnic-controlled areas is at the heart ofmany conflicts in Myanmar. The people living in these
57 Myanmar Special Economic Zones Law, the Pyidaungsu Hluttaw
Law No. 1/2014 8th Waning of Pyatho, 1375 M.E 23rd January
2014. See: Aye Thidar Kyaw and Stuart Deed, “SPDC signs Special Economic Zone law into effect on Jan 27”, Myanmar Times,
7-13 February 2011.

27

areas scarcely benefit from these operations. For example, following the ceasefire agreement signed between
President Thein Sein’s representatives and counterparts
from the Karen National Union (KNU) in January 2012,
dozens of business and development projects were triggered in eastern Myanmar. As highlighted in a 2013 report from the Karen Human Rights Group (KHRG), theseprojects began with displacement and land confiscation,
without compensation or due process of the law.58
The vast majority of ethnic nationalities live in themost resource-rich areas of the country and depend on
farmland and forests for their livelihoods. Most of them,
however, have no formal title to their customary lands.
The country has witnessed the adoption of several
land-related laws which undermine yet further the recognition of indigenous communities’ land rights. Under
newly-passed laws, including the Farmland Law and the
Vacant, Fallow and Virgin Lands Management Law, theState remains the ultimate owner of all land. The 2012
Farmland Law stipulates that land can be legally bought,
sold and transferred on a land market with land-use certificates (LUCs). This implies the rejection of all formsof customary land usage and ownership rights for local
communities. Moreover, this law stipulates that only the

58 Karen Human Rights Group (2013), “Losing Ground: Land
conflicts and collective action in eastern Myanmar”.

Farmland Administration Body, which is chaired by the
Ministry of Agriculture, can allocate farmland. This allows for the total political and centralized control of land
allocation. The Vacant, Fallow and Virgin Lands Management Law (VFV Law) legally allows the government
to reallocate villagers’ farm and forestlands to domestic
and foreign investors. In practice, this law gives government the power to declare any land as ‘‘vacant, fallow
and virgin land” open to foreign investors, even thoughsuch land might be used and customarily-owned by local
ethnic communities.59
In this context, it is worth bearing in mind that many
communities practise shifting cultivation throughout thecountry, a practice that involves land sharing and common land ownership. Under these new laws, whichfavour the holders of official individual land titles, mostcommunities will lose their land rights. Communitymanaged resources, such as village forests, waterways,
fishponds and grazing lands, are equally open to confiscation. As analysed in an in-depth study by the Transnational Institute: “The result from these two new land lawsis that families and communities living in upland areas– now labelled ‘wastelands’ – have no legal land rights
and land tenure security. This immediately puts ethnic
upland communities under the real threat of losing theirlands, which are precisely the areas heavily targeted byresource extraction and industrial agricultural concessions as well as infrastructure development.”60
Land dispossession is therefore an increasing problem for the ethnic nationalities. With the growing interest
in investing in Myanmar that has been facilitated by thepassing of the Foreign Investment Law, threats to indigenous peoples’ traditional lands and natural resources
are likely to increase further. The legal landscape isquickly changing, as demonstrated by the new land andinvestment laws adopted in 2012, although constitutional reform may influence specialized legislation.
Overall, the combination of pro-foreign investment
legislation, centralized and politically-controlled land
legislation, and the rejection of specific protection for indigenous peoples all add up to a lethal combination for
the future of indigenous communities’ land rights in the
country. The fact that Myanmar is also placed very highon the agenda of many agribusiness investors and theirsupportive financial institutions does not help matters.

59 The Vacant, Fallow and Virgin Lands Management Law (Pyidaungsu Hluttaw Law No. 10 of 2012) Day of 8th Waxing of Tagu
1373 ME (30th March, 2012)
60 “Access Denied: Land Rights and Ethnic Conflict in Burma”(Transnational Institute, Burma Policy Briefing Nr 11, May 2013).

28

2.3. Latin America, land grabbing andindigenous peoples
Many countries in Latin America have also been part of
the global land rush. The FAO commissioned a regional
study on the issue in 2011. The study, which examines
the situation in 17 countries in the Latin American and
the Caribbean region, shows that land grabbing is occurring in this region to a greater extent than previously
assumed.61 The hallmarks of the process in the region
are quite similar to the ones driving the process globally,
including agribusiness developments and high demand
for the production of biofuels, but it seems that the production that has witnessed a remarkable surge in thelast few years is linked to the rise of ‘flex crops’ particularly soya, oil palm and sugarcane, alongside land acquisitions for the expansion of industrial tree plantations
and mega conservation projects.62 However, as noted inseveral studies, the specific feature in this region seems
to be that the animal feed (soya) component of theseland grabs remains unparalleled anywhere else in theworld.63

Colombia64
Projections from the National Statistics Department for2012 establish that the indigenous population numbers
around 1,450,000 (or 3.5 % of the national population).
With more than 87 different peoples and 65 different languages, Colombia is, after Brazil, one of the most ethnically diverse countries in the Americas. The indigenous
peoples of Colombia live in such contrasting ecosystems
as the Andes, the Amazon, the Pacific, the Eastern Plains
and the desert peninsula of Guajira. Approximately onethird of the national territory is collectively owned by theindigenous peoples in the form of ‘reserves’. Large partsof the indigenous territories are now being affected by oil
and mining operations, along with plantations (banana,palm oil, and coca), all of which severely affect the livesof the indigenous communities.
61 Saturnino M. Borras Jr., Jennifer C. Franco, Cristobal Kay and
Max Spoor (2011) “Land grabbing in Latin America and the Caribbean viewed from broader international perspectives” (FAO, 14
November 2011).
62 Ibid., p. 10.
63 See: Teubal, M. (2006) “Expansión del Modelo Sojero en laArgentina. De la Producción de Alimentos a los Commodities”,
Realidad Económica, No. 220.
64 This section builds on the presentation of Angel Áquileo Yagari
Vélez, “Multi investment and peace process in Colombia” (IWGIA
Seminar on Land Grabbing – October 2014).

Indigenous peoples in Colombia. Photo: IWGIA archive29

In many ways, land grabbing is not a new issue inColombia, as captured by Jonathan Glennie: “If you
were to write a history of Colombia you could do worse
than call it ‘Land Grab’.”65 The history of the country has
been dominated by a history of violent land dispossession, notably of the smallholder peasants, indigenous
peoples and Afro-Colombians. The years of conflictthat the county has witnessed have been instrumental
in forcing indigenous people and Afro-Colombians fromtheir land. Paramilitaries and criminal gangs have taken
advantage of the conflict to take control of large swathesof land to mine for gold, explore oil reserves and establish palm oil plantations, often on indigenous territories.
There are several reports highlighting how the forced
displacement of indigenous and Afro-descendant communities due to the conflicts has resulted in their lands
being acquired by land ‘grabbers’. As noted by Mathilde
Allain, in these situations: “(…) a real process of legalisation of dispossession takes place, where local administrations do not carry out the judicial measures taken
against these illegal occupants. This dispossession
goes further still in the cases where businesses which illegally occupy these lands file complaints for invasion on
personal property against the native communities who
have property titles over their territory”.66 In the current
post-conflict situation, Colombia has been witnessing
the increase in many political and economic incentives
to develop agribusiness with a development discourse
centred on global markets.67 As a result, the country has
seen very large increases in investment in the oil palm,sugar beet, sugarcane, soya, rice, corn and forestry industries. For example, while in 2001 at a national level
there were 161,210 hectares of oil palm planted, in 2005
the figure had increased to 275,317 hectares; that is to
say Colombia had undergone a 41.4% increase in justunder four years, figures which make the country thechief producer in Latin America, and the fourth largest
globally.68
Other figures highlight how Colombia has opened
up to foreign investors. For example, Cargill, one of theworld’s largest agribusinesses, bought over 220,000
acres in the Colombian department of Meta, where it is

65 Jonathan Glennie (2011) “Land grabs have dominated Colombia’s history”, The Guardian (UK), Monday 31 January 2011.
66 Mathilde Allain (2015) “Land Grabbing and Peace Negotiations
in Colombia”, July 2015, available at: http://www.noria-research.
com/land-grabbing-and-peace-negotiations-in-colombia/
67 See: Grajales, J. (2013) “State Involvement, Land Grabbing andCounter-Insurgency in Colombia”. Development and Change, 44:
211–232.
68 Mark James Maughan (2011) “Land Grab and Oil Palm in Colombia” (Land Deals Politics Initiative, 2011).

30

already producing grain. The Israeli company Merhav
has invested US$ 300 million in buying and preparingnearly 25,000 acres in Magdalena Medio for the production of sugar cane from which to produce ethanol. Over280,000 acres have been sold to foreign companies forbiofuel crop production, as well as nearly 250,000 acresof forest land that is now owned by Timberland Holdings(Swiss-Ecuadorian company), Smurfit-Kappa (Irish), theChilean-based companies Agrícola de La Sierra andReforestadora del Sinú, and the Colombian companies
Inverbosques and Forest First.69 It is also worth noting
that, in 2011, Colombia signed Free Trade Agreements(FTAs) with the United States of America, Canada andSwitzerland, thus opening the door to imported agricultural and food products, discouraging the reconstruction of the agricultural sector and increasing poverty inrural Colombia. Many indigenous and Afro-Colombiancommunities have been directly affected by the expansion of biofuel production. As analysed by Alvarez andMondragón in 2007, the land struggles of indigenous,
peasant and Afro-Colombian communities in the Cauca
River Valley were linked to the expansion of sugarcane
cultivation in the region.70 While the government hadpromised to buy lands in Cauca province and give themto the indigenous communities in recognition of their territorial rights and as reparation for an indigenous massacre, these lands were then leased to the sugar/ethanolindustry to expand sugarcane cultivation in the region.
In terms of the legal framework, Colombia undertook
an important reform of its Constitution in 1991, with theaim notably of providing more recognition and protection of Colombia’s ethnic diversity. As a result, the Constitution and its implementing legislation prohibit racial
discrimination, and protect and promote equality. Following the new constitutional momentum, Act No. 160
of 1994 was adopted to recognize indigenous peoples’
land rights. This law notably governs the rules regarding
indigenous reservations. In terms of its international obligations, it is worth highlighting that Colombia has ratified ILO Convention 169, and the Inter-American Courtof Human Rights has received several cases regarding
indigenous peoples’ rights in Colombia.
However, despite the development of specific land
rights for indigenous peoples, there are many shortfalls
in the implementation of this legal framework. Apart
69 All these figures are from 2012: Nazih Richani, “Sovereignty For
Sale: Corporate Land Grab in Colombia” (Cuadernos Colombianos, 10 April 2012).
70 P. Alvarez (2007) “Los agrocombustibles en boga: el caso deletanol en Colombia”, Revista Semillas, 34/35, 44-51 (2007); H.
Mondragón, “Cómo encadenaron a la madere tierra y a la gente
en el Norte del Cauca”, Revista Semillas, 34/35, 36-43 (2007).

from the general issue of violence against indigenous
peoples, there is also a lack of implementation and respect for the rule of law when it comes to land rights.71
There have been many cases regarding a lack of protection of indigenous peoples that have reached the levelof the Constitutional Court in the past.72 Moreover, thegovernment recently undertook to make a number of
amendments to Decrees 1987 of 2013 (agrarian pact)
and 1465 of 2013 (special agrarian procedures to clarify
ownership) aimed at legally protecting indigenous ancestral territories. These legal changes may directly affect indigenous peoples’ rights to their land and territories. Moreover, with regard to land grabbing, in addition
to recent legislation such as the law for the promotion of
ethanol adopted in 2001 (Law 693 2001) and the 2004
law to promote biodiesel (Law 939 2004), the government has adopted several packages of incentives tosupport investment in agribusiness and biofuels.73 The
result of this increase in the production of biofuels has
been the massive acquisition of land on which to plant
palm oil and sugarcane. This has resulted in displacements, land dispossessions, and the violent appropriation or misappropriation of land.

71 For details, see: Report of the Special Rapporteur on the situationof human rights and fundamental freedoms of indigenous people, James Anaya, The situation of indigenous peoples in Chile:follow-up to the recommendations made by the previous Special
Rapporteur, UN Doc. A/HRC/12/34/Add.6 (2009).
72 See for example: Second Review, Chamber of the Colombian
Constitutional Court, by means of Court Record Nº 004 of January 26, 2009. For a review of all the major cases, see: Vermund
Olsen, ‘Legal framework for indigenous peoples’ rights in Colombia’ (HREV, 2008), available at: http://hrev.org/wp-content/
uploads/2011/02/tp2legalframework.pdf
73 For details, see: Victoria Marin, Jon C. Lovett and Joy S. Clancy(2011) “Biofuels and Land Appropriation in Colombia: Do Biofuels
National Policies Fuel Land Grabs?” (Paper presented at the International Conference on Global Land Grabbing 6-8 April 2011).

31

Chile74
The population that self-identifies as belonging to or descended from one of the nine indigenous peoples recognized under Chilean law numbers 1,369,563 people, or 8
% of the country’s total population.75 The Mapuche, fromthe south, account for approximately 85 % of this number.
Land grabbing has been fuelled by the phenomenal
increase in demand for meat and other animal products,
as well as fruits and wines, which has in turn led to the
expansion of lands for livestock and fruits and vineyards
across Chile. Forestry, and particularly the acquisition ofland on which to plant commercial trees such as pineand eucalyptus, is another large industry in Chile. A further sector that has created high demand for land has
been the conservation and tourism sector, and notably
the purchase of large tracts of land by private actors
in the name of conservation.76 Over the past 10 years,
land purchases for conservation objectives — known
as Privately Protected Areas (PPAs) — have emerged
across Chile, now totalling around 1.6 million hectares
and covering around 2 % of the country. Chile now has
around 21% per cent of its total land area under private
or State-managed conservation. One of the largest (andmost controversial) individual land purchases was Doug
Tompkins’ 275,000 hectare PPA in the north of Chile(Tompkins also owns US-based recreational company
North Face).77 The land was acquired for conservation,
as the aim was to establish a very large private protected area. However, in this process of land acquisition, thelocal populations’ rights to land were not respected. Thisis only an example, as there have been other large-scaleland purchases by private individuals done with the aimof conservation. In these cases, the land rights of the local populations have usually been undermined.78
The other ‘industry’ that has been significantly andnegatively impacting the rights of indigenous peoples totheir lands and natural resources relates to the increasing development of industrial tree plantations across the74 This section relies on information presented by Alfredo Segel,“Logging and fast growing tree plantations in Chile” – October
2014 (IWGIA Workshop on Land Grabbing).
75 See: Database from the National Socio-economic Survey (CASEN) 2011. Statistical projection made by the Civic Observatory
team.
76 See: George Holmes (2014), “What is a land grab? Exploring
green grabs, conservation, and private protected areas in southern Chile”, The Journal of Peasant Studies, Vol. 41, Iss. 4, 2014.
77 See: IIED, “‘Land grabbing’: is conservation part of the problem or
the solution?”, at: http://pubs.iied.org/pdfs/17166IIED.pdf
78 See: George Holmes (2014), “What is a land grab? Exploring
green grabs, conservation, and private protected areas in southern Chile”, The Journal of Peasant Studies, Vol. 41, Iss. 4, 2014.

Pine and eucalyptus plantations in Mapuche traditional land. Photo: Rubén Sánchez

32Pine and eucalyptus plantations in Mapuche traditional land. Photo: Rubén Sánchez

country. Most of these tree plantations have been established on traditional Mapuche lands, mainly in the regionsof Biobío, La Araucanía, Los Ríos and Los Lagos. In mostsituations, this has a direct impact on indigenous peoples’
rights, as these tree plantations are established on lands
which were usurped from the Mapuche both during thecolonial era and following the military coup of 1973.79
In terms of the legal framework, Chile’s constitution(which dates from 1980, during the time of the military
dictatorship) still fails to recognize indigenous peoples
and their rights. There have been years of negotiations
to ensure a revision of the Constitution and its incorporation of indigenous peoples’ rights but this process has
thus far been unsuccessful. The main law concerningindigenous peoples’ rights is Law No. 19,253 of 1993
on the “Promotion, protection and development of indigenous peoples”.80 However, this law is far from meeting
the international legal standards on the rights of indigenous peoples. This lack of respect for and implementation of indigenous peoples’ rights was recently illustrated
with the adoption of specific decrees that directly affectindigenous peoples. For example, Supreme Decree
79 See: Nancy Yáñez, José Aylwin and Rubén Sanchez (2013),“Pueblo mapuche y recursos forestales en Chile: devastación yconservación en un contexto de globalización económica” (Observatorio Ciudadano & IWGIA, 2013)
80 Indigenous Law Nº 19,253 of 1993.

33

No. 124 of the Ministry of Planning expressly precludes
consultations concerning investment projects. In 2013,
the Ministry of Social Development approved the regulation governing indigenous consultation by means ofSupreme Decree (SD) No. 66. Article 3 of the regulation
establishes that the duty to consult shall be consideredfulfilled when the body responsible has made the necessary efforts to reach an agreement or obtain the consent
of the peoples affected, “even when it has not been possible to do so”. Its Article 7 provides that only those legislative and administrative measures that “directly causea significant and specific impact on indigenous peoples
because of their status as such” shall be required to be
put out to consultation. As noted in IWGIA’s Yearbook,these two principles are in direct violation of ILO Convention 169, to which Chile is a state party and whichstates that indigenous peoples should be consulted on
all administrative and legislative measures that are likely
to directly affect them and that the aim of the consultation is to reach an agreement or obtain consent.81
Likewise, the regulation governing the environmental impact assessment system (SD No. 40), whichcontains rules governing the ‘consultation’ of indigenous

81 See: IWGIA 2014 Yearbook, p. 203; available at: http://www.iwgia.
org/regions/latin-america/chile

peoples with regard to investment projects that are subject to an environmental impact assessment (EIA), does
not meet the minimum standards established in ILO 169.
For example, this regulation limits the requirement forprior consultation to high-impact projects and restricts
consultation to cases that directly affect indigenous peoples, this being determined in advance by the authority.

2.4. Land grabbing in the Arctic and Siberia
The Arctic region has recently been labelled the ‘new Eldorado’ for being one of the richest regions in terms of future
potential natural resource exploitation. The Arctic region is home to several groups of indigenous peoples, all of which
are badly affected by the current wave of land grabbing on the part of private and public investors looking for land to
be exploited. The following section focuses on the situation in Russia, where IWGIA’s partner organization has been
experiencing this process.

Russia82

Open cast mine in the inmmediate neighbourhood of Kazas. Photo: Nelly Tokmagasheva

The Russian Federation is home to more than 100 ethnic groups. Of these, 41 are legally recognized as ‘indigenous, small-numbered peoples of the North, Siberia andthe Far East’; others are still striving to obtain this status,
which is conditional upon a people having no more than
50,000 members, maintaining a traditional way of life, in82 This section is based on the paper presented by Johannes Rohr,“Land Grabbing in Russia” – (IWGIA Seminar on Land Grabbing– October 2014)34

habiting certain remote regions of Russia and identifying
itself as a distinct ethnic community. A definition of ‘indigenous’ without the numerical qualification does not exist in
Russian legislation. The small-numbered indigenous peoples number approximately 250,000 individuals and thus
make up less than 0.2 % of Russia’s population. They traditionally inhabit huge territories stretching from the Kola
Peninsula in the west to the Bering Strait in the east, andcovering around two-thirds of the Russian territory. Theirterritories are rich in natural resources, including oil, gas

The coal mining company scared inhabitants of Kazas village into selling their houses far below market priceand immediately had them demolished to make way for mining. Photo: Nelly Tokmagasheva

35and minerals, and they are heavily affected by large energy projects such as pipelines and hydroelectric dams.
Russia offers a different situation compared to othercountries that are witnessing large-scale foreign investments as such investment is small in comparison with thedomestic land grabbing that is taking place.83 Russia haslarge ‘land reserves’ and huge potential for natural resource
exploitation. The drive to use these lands and exploit thenatural resources is being largely driven by Russian oligarchs rather than foreign investors. However, the rationale
for such large-scale grabbing is similar to the arguments
developed for the global land grab, as the common argument developed by the authorities to justify large-scaleacquisitions of indigenous territories is that such lands areavailable, unpopulated and under-exploited. The land grab
is largely driven by the ongoing expansion of industrial
operations, mostly in the extractive industries. Indigenous
peoples’ territories are heavily affected by large energy
projects such as pipelines and hydroelectric dams. One ofthe drivers of land grabbing and displacement is open castmining with its high profitability and its insatiable appetite forland. It has converted indigenous peoples’ ancestral lands
in regions such as the Kuzbass into lunar landscapes andsubjected indigenous communities to chain displacements.
Since the 1970s, some indigenous communities saw themselves forcibly relocated several times over for which they
have never been compensated. Today, the pressure to
relocate is mounting on the last intact majority indigenous
settlements. Much of the coal from the Kuzbass region is
being exported to Europe.
The current land grabbing is supported by the land
reforms that have taken place since the early 1990s
and which bear witness to the increased legalization oflarge private properties.84 The main change came with
the new 2001 Land Code as well as the 2003 Agricultural Land Transactions Law, which allows for the sale oflarge plots of private land. This opened up the possibilityof large tracts of land being purchased by investors. It is
still illegal to sell land to foreigners but foreign investors
often operate through their Russian subsidiaries, thus
enabling them to buy land. Land grabbing is expanding
at a rapid pace and, in some cases, resulting in dispossession and little or no compensation.
In theory, there is a legal framework in place to protect indigenous peoples’ land rights. Three main federal

83 See: Oane Visser and Natalya Mamonova (2012), “Large-scaleland acquisitions in the former Soviet Union: A study of rural social
movements and land conflicts” (IS Land Academy report, 2012).
84 See: O. Visser, N. Mamonova and M. Spoor (2012), “Oligarchs,
megafarms and land reserves. Understanding land grabbing in
Russia”, The Journal of Peasant Studies, vol. 39, 2012.

36

laws are relevant to indigenous peoples’ rights, the law“On Guarantees of the Rights of Indigenous Small-numbered Peoples of the Russian Federation”; the law “OnGeneral Principles of the Organisation of Communities[obshchinas] of Indigenous Small-numbered Peoples of
the North, Siberia and Far East of the Russian Federation”; and the law “On Territories of Traditional Nature Useof Small-numbered Indigenous Peoples of the North, Siberia and the Far East of the Russian Federation”. However, despite this legal framework, in reality indigenous
peoples’ land rights are rarely recognized or protected.
This is due to poor implementation but also to fundamentally contradictory legal provisions. The Land Code, inparticular, contradicts many of the guarantees proclaimed
in the laws regarding indigenous peoples’ rights. For example, as noted in a recent report commissioned by theWorld Bank: “There is a lack of congruence among theRussian Federation laws with regard to how land andtenure are established.”85 The report further notes that,
overall, the Land Code, Forestry Code and Water Codedo not limit tenders and auctions of land, forest and water
areas in territories where indigenous peoples live and forthe natural resources they use. In practice, this meansthat the little protection offered to indigenous peoples by
the law can be undermined at any time by the provisions
defined in the natural resource legislation such as the forest, water, fishing, hunting or land codes.
In practice, it is still fairly common for Russian oil companies to enter indigenous peoples’ territories without any
consultation, consent or even information provision to theaffected communities. Reports from Komi Republic in 2014
revealed that the long-distance “Azeska – Irayol” pipeline,
cutting through the territory of the Izvatas people, had been
built without real consultation. Villagers from Shelyayur reported how oil wells had been set up literally on the edgeof the village without the knowledge of the local population. In both cases, the company was under an obligation
to hold public hearings as part of the approval process but
the hearings were held in a remote location and were notannounced to those affected. Such mock hearings are acommon strategy practised by many extractive companies.
Their protocols often fail to reflect objections expressed during the hearing and indicate consent and agreement where
there was none. More generally, the political environment in
Russia is not currently conducive to supporting the rights ofindigenous peoples and the latest developments show nosigns of Russia increasing its consideration of indigenous
rights during the planning and execution of oil and gasrelated projects.
85 World Bank. 2014. Indigenous peoples of Russia: country profile.
Washington, DC: World Bank Group.

SECTION 3: INTERNATIONAL & REGIONALLEGAL FRAMEWORK(S)O

ne of the complexities of the international legal
framework applicable to land grabbing relates to thefact that several parts of international law are relevant.
Large-scale land grabbing directly affects indigenous
peoples’ human rights as guaranteed under international
human rights law but also touches upon legal issues thatfall under international investment or environmental law.
While the international human rights framework is certainly essential for challenging land grabbing, other parts ofinternational law also need to be included in order to offer
a comprehensive approach to the issue of land grabbing.
The following analysis examines land grabbing in the context of (1) International Human Rights Law; (2) Business,
Human Rights and International Investment Law; (3) International Environmental Law; and (4) Soft Law Initiatives on Land Rights and Land Tenure. This overview is
not exhaustive, as the aim is to provide a general synopsis
of the main areas of law that are relevant to land grabbing
without entering into the details of each area of the law.
The references given throughout this section may, however, provide guidance towards more specialized sourceson these specific areas of law.

3.1. International human rights law
Land grabbing directly affects many of the human rights ofindigenous peoples, ranging from their right to land to theircultural and spiritual rights. This protection is based ona number of interrelated human rights protected by international law, including the right to property, food, culture,
housing, self-determination, non-discrimination and development. From this perspective, the whole international
human rights framework developed for the protection ofindigenous peoples’ rights is relevant. As such, the following analysis does not undertake a detailed review of theindigenous peoples’ rights that are relevant to the context
of land grabbing but rather provides a snapshot of someof the most relevant rights in the particular context of land
grabbing. In so doing, the aim is also to focus on someof the general human rights applicable to all rather than
the specific human rights devoted to indigenous peoples.
Human rights law does not specifically address land grabbing but does offer several avenues by which to ensurethat individuals, peoples and communities do have their37

fundamental rights to food, water and housing respected,
protected and promoted.

General human rights law
The right to foodThe right to food is strongly affirmed under international
human rights law. Article 25 of the Universal Declarationof Human Rights (UDHR) states that everyone has theright to an adequate standard of living, “including food”.
Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) makes special reference to the right to food by expressly affirming the rightof everyone to an adequate standard of living “including
adequate food”. Article 11(2) proclaims the “fundamental
right of everyone to be free from hunger”, and requires
States “to improve methods of production, conservationand distribution of food”, in particular reforming agrariansystems in order to achieve the most efficient use of natural resources; Article 11(2)(b) requires the implementationof “an equitable distribution of world food supplies”.
Several references to land rights can be found in General Comment 12 of the Committee on Economic, Social
and Cultural Rights on the right to food. In its General
Comment, the Committee stated: “The right to adequate
food is realized when every man, woman and child, alone
and in community with others, has physical and economic access at all times to adequate food or means for its
procurement.”86 In considering that the “roots of the problem of hunger and malnutrition are not lack of food butlack of access to available food”, General Comment 12
on the right to adequate food states that availability “refers to the possibilities either for feeding oneself directlyfrom productive land or other natural resources”, or fromfunctioning market systems that make food available. The
General Comment further states that ensuring access to“food or resources for food” requires States to implement
full and equal access to economic resources, including
86 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 12: The Right to Adequate Food
(Art. 11 of the Covenant), 12 May 1999.

the right to inheritance and ownership of land, for all people, and particularly for women.
The connection between land rights and the right tofood has been specifically exposed in the context of land
grabbing. The former UN Special Rapporteur on the Right
to Food, Olivier De Schutter, has directly connected theright to food with the question of large-scale land acquisitions by highlighting that:“The human right to food would be violated if people depending on land for their livelihoods, including pastoralists, were cut off from access to land,
without suitable alternatives; if local incomes wereinsufficient to compensate for the price effects resulting from the shift towards the production offood for exports; or if the revenues of local smallholders were to fall following the arrival on domestic markets of cheaply-priced food, producedon the more competitive large-scale plantations
developed thanks to the arrival of the investor”.87
Going further, the Special Rapporteur’s analysis invites
all stakeholders (governments, investors and local communities) to adopt a more structured approach that places
human rights standards at the centre of negotiations. The
Special Rapporteur has proposed 11 minimum principles
relating to the right to food, which are addressed to investors, home states, host states, local peoples, indigenous
peoples and civil society. Two of the proposed principles
are directly concerned with land rights:
3.1. Transfer of land-use or ownership can only
take place with the free, prior and informed consent of the local communities. This is particularly
relevant to indigenous communities given their
historical experience of dispossession.
3.2. States should adopt legislation protecting
land rights including individual titles or collective
registration of land use in order to ensure full judicial protection.
As part of the ongoing pressure for lands to produce food,the Special Rapporteur has stated that in order to protect
the right to food of the most destitute, States should ensure local communities’ security of land tenure (including
indigenous peoples) and put in place policies aimed at ensuring more equitable access to land. In the overall global

87 Report of the Special Rapporteur on the Right to Food, Olivier De
Schutter, “Large-scale Land Acquisitions and Leases: A Set of
Minimum Principles and Measures to Address the Human Rights
Challenge”, UN Doc. A/HRC/33/13/Add.2., para. 4.

38rush for land, it may be important to further highlight thisconnection between the right to food and land rights forindigenous peoples.

The right to water
The right to water can also represent an important legal
framework in the context of land grabs. Very often, land
grabbing also involves ‘water grabbing’ as the businesses
that are developed on the land for food or biofuel production are very often highly demanding of water sources.
In 2010, the United Nations General Assembly explicitly
recognized the human right to water and sanitation andacknowledged that clean drinking water and sanitation
were essential to the realization of all human rights.88
A good illustration of the relevance of the right to waterin the context of grabbing indigenous peoples’ land is thedecision of the Human Rights Committee (HRC) in the caseof Ángela Poma Poma v. Peru. This case concerns water
restrictions suffered by an indigenous community of llama
herders who lost a significant share of their water following developmental projects undertaken by the government.
The community challenged this loss of access to water as
it greatly affected their livelihoods by not allowing them tograze and herd their llamas. The HRC examined the casefrom an angle of cultural rights for minorities as protectedunder Article 27 of the ICCPR based on the fact that theloss of access to water affected the right of the community to practise a traditional activity essential to their culture.
The view of the Committee was that if a decision, and thisincludes allocation of water, substantively compromises
the way of life and culture of a minority and indigenous
community then this community should be consulted andshould provide its free, prior and informed consent before
any decision is made. The Committee affirmed that “...participation in the decision-making process must be effective,
which requires not mere consultation but the free, prior andinformed consent of the members of the community.”89
Overall, the right to water is now strongly affirmed
both as a stand-alone right and also as part of otherfundamental rights such as the rights to health and life.
While there is still very little jurisprudence on the issue, it iscertain that, with the increased global quest for remaining
sources of fresh water, ever more cases and decisions will
focus on the right to water.
88 Resolution adopted by the General Assembly: The Human Right
to Water and Sanitation, UN Doc. A/RES /64/292 (3 August2010).
89 Human Rights Committee, Communication No. 1457/2006,Ángela Poma Poma v. Peru, 24 April 2006, UN Doc. CCPR/
C/95/D/1457/2006 (2006).

The right to adequate housing
The right to housing is enshrined in several key international human rights instruments. This includes the ICESCR (Art. 11, para. 1), the Convention on the Rights of theChild (CRC) (Art. 27, para. 3), and the non-discrimination
provisions found in Article 14, paragraph 2 (h) of the Convention on the Elimination of all Forms of Discrimination
against Women (CEDAW) and Article 5 (e) of the International Convention on the Elimination of all Forms of Racial
Discrimination (ICERD). Article 25 of the UDHR includes
the right to housing as part of the broader right to an adequate standard of living. Hence, the right to housing isoften qualified as a right to ‘adequate’ housing.
The Committee on Economic, Social and Cultural
Rights (hereinafter the CESCR) has devoted a large partof its work to the right to adequate housing. In its General Comment No. 4 on the right to adequate housing, the
CESCR highlighted that “while adequacy is determinedin part by social, economic, cultural, climatic, ecologicaland other factors”, there are nonetheless some key universal factors to determine the content of such right. The
Committee has identified seven common factors, the firstone being the legal security of tenure. While security oftenure takes a variety of forms, including rental (public
and private) accommodation, cooperative housing, lease,owner-occupation, emergency housing and informal settlements, it also refers to security of rights over land.
The Committee has notably focused on the situationof landless persons, highlighting how the lack of accessto land fundamentally impinges on the realization of theirright to adequate housing. The CESCR noted that “discernible governmental obligations need to be developed
aiming to substantiate the right of all to a secure place tolive in peace and dignity, including access to land as anentitlement”.90 The Committee added that “[W]ithin many
States parties increasing access to land by landless or
impoverished segments of the society should constitute a
central policy goal” (para. 8 (e)). This approach highlights
how the realization of the right to adequate housing necessarily implies a government guarantee of both accessto land and security of land tenure for the landless.
The focus on security of tenure and access to land as
essential elements of the right to adequate housing is alsoa central feature in the work of the UN Special Rapporteuron adequate housing. Miloon Kothari, the former UN Special Rapporteur, has particularly put great emphasis on
the importance of recognizing that land rights constitute a

90 The right to adequate housing (Art.11 (1)), CESCR General comment 4. (General Comments).

39

central aspect of the right to housing. The Special Rapporteur has identified land rights as the normative gap withininternational human rights when it comes to the protectionof the right to adequate housing. As noted in the 2007
report: “Throughout his work, the Special Rapporteur has
tried to identify elements that positively or negatively affectthe realization of the right to adequate housing. Land as
an entitlement is often an essential element necessary tounderstand the degree of violation and the extent of realization of the right to adequate housing.”91
Overall, the connection between housing and land
rights is a strong feature of human rights law, and it involves both a positive and a negative aspect. It has a positive aspect in the sense that land rights are considered to
be an essential element for achieving the right to housing
and a negative aspect as land dispossession could qualify
as forced eviction, in direct violation of the right to housing.
Housing and land rights have also been inter-connectedin the human rights approach to forced eviction. General
Comment No. 7 of the CESCR defines forced eviction as
the “permanent or temporary removal against the will of
individuals, families or communities from their homes orland, which they occupy, without the provision of, and access to, appropriate forms of legal or other protection”.
Forced evictions are often linked to the absence of legally
secure tenure, which constitutes an essential element of
the right to adequate housing. Forced evictions are prima
facie violations of the human right to adequate housing.

Protection from forced eviction
Both the UN Comprehensive Human Rights Guidelines
on Development-based Displacement and the Basic Principles and Guidelines on Development-based Evictions
and Displacement adopt a similar definition of forced eviction, which includes loss of lands.92 Forced evictions aredefined as the involuntary removal of individuals, families
or communities from the homes or land which they occupy, without appropriate legal protections. Under international law, forced evictions are considered “a gross violation of human rights” that “can only be justified in the most

91 Report of the Special Rapporteur on adequate housing as acomponent of the right to an adequate standard of living, Miloon
Kothari, UN Doc. A/HRC/4/18 (5 February 2007), at para. 25
92 Basic principles and guidelines on development-based evictions and displacement contained in Annex I to the report of theSpecial Rapporteur, UN Doc. A/HRC/4/18 (2007). The basic
principles and guidelines on development-based evictions anddisplacement represent a further development of the United Nations Comprehensive Human Rights Guidelines on Developmentbased Displacement (E/CN.4/Sub.2/1997/7, annex).

exceptional circumstances”, and only then if they comply
with specific standards.93
While international human rights law does recognizethat States have the power and right to forcibly evict people in the name of public interest (for example the buildingof infrastructure), this power is not absolute and should
ensure that the concerned persons receive fair and justcompensation. Failure to respect the human rights of theevicted person is recognized as constituting a violationof human rights. International human rights law requires
that, to be legal, an eviction should only occur under exceptional circumstances and respect specific legal processes. Based on several regional human rights cases,
it is now understood that State restrictions on the use andenjoyment of community land rights must be: (1) previously established by the law; (2) necessary; (3) proportionate; and (4) aim to achieve a legitimate objective in a
democratic society.
The connection between forced eviction and violationof land rights played an important role in the decision of
the African Commission on Human and Peoples’ Rights(ACHPR) in the case of the Endorois community v. Kenya.
The Commission highlighted how the non-recognition ofand failure to respect the land rights of the indigenous
community in their displacement led to their forced eviction, in violation of Article 14 of the African Charter on
Human and Peoples’ Rights.94 In reaching such a decision, the Commission made direct reference to standards
outlined by the UN CESCR in its General Comment 4 on
the right to housing and General Comment 7 on evictions
and the right to housing, highlighting how land rights are
directly related to both the right to housing and the prohibition of forced evictions.

Indigenous peoples’ specific rights
Land rights
The other relevant part of international human rights comesfrom the protection of land rights for indigenous peoples.
An important aspect of international human rights law is
to highlight that indigenous peoples’ land rights need tobe recognized and protected by their own governments.
93 Ibid.
94 African Commission on Human and Peoples’ Rights, Communication 276/2003, Centre for Minority Rights Development (CEMIRIDE) and Minority Rights Group International (MRG) (on behalf of the Endorois) v. Kenya (decision of Feb., 2010), see para.
200.

40

Most indigenous communities’ land tenure systems relyon ancestral customary land rights. However, many legal
systems do not properly recognize these customary rights
or, when they do, these rights are considered as less important than other recognized rights. In the context of land
grabbing, this has often been understood by governments
as meaning that the land is empty, unoccupied, or under
State ownership. International human rights law clearly
establishes that States need to recognize indigenous
peoples’ land rights even when these are not formally recognized by the administration.
The UN Declaration on the Rights of Indigenous
Peoples (UNDRIP) devotes several of its articles to land
rights, making this an essential human rights issue forindigenous peoples. Article 25 of the Declaration affirms
that: “Indigenous peoples have the right to maintain andstrengthen their distinctive spiritual relationship with theirtraditionally owned or otherwise occupied and used lands,
territories, waters and coastal seas and other resources
and to uphold their responsibilities to future generationsin this regard.” Likewise, International Labour Convention
No. 169 on the Rights of Indigenous and Tribal Peoples
also includes a human rights-based approach to land
rights. ILO Convention No. 169 notably affirms that, inapplying the Convention, “governments shall respect the
special importance for the cultures and spiritual values ofthe peoples concerned of their relationship with the lands
or territories, or both as applicable, which they occupy orotherwise use, and in particular the collective aspects ofthis relationship”. Both the UN Charter and treaty-based
international human rights bodies have affirmed this approach, highlighting that land rights are a strong component of indigenous peoples’ rights under internationallaw. In recent years, both the Inter-American Court of andCommission on Human Rights and the African Commission on Human and Peoples’ Rights have developed verystrong jurisprudence on this issue. Both regional systems
have notably highlighted the following key principles:
1. Traditional possession of lands by indigenous andtribal peoples has equivalent legal effect to that ofa State-granted property title;
2. Traditional possession entitles indigenous andtribal peoples to demand official recognition,
demarcation and registration of their ownershipright;
3. Members of indigenous and tribal peoples who
have unwillingly left or lost possession of theirtraditional lands maintain property rights to theirlands, even though they lack legal title, unless thelands have been lawfully transferred to third parties in good faith; and4. Members of indigenous and tribal peoples who
have unwillingly lost possession of their lands,
when those lands have been lawfully transferred
to innocent third parties, are entitled to get theirlands back (restitution) or to obtain other lands ofequal size and quality.95

The Right to Free, Prior andInformed Consent
The other crucial right protected under international human rights law in the context of land grabbing is the rightto free, prior and informed consent (FPIC). The UNDRIP
puts great emphasis on the right to FPIC for indigenous
peoples, especially in the context of development.96 It implies a process of consultation, which has to be free frommanipulation and coercion, respect traditional decisionmaking processes, and be held sufficiently in advance of
project execution with adequate information provided toenable informed decisions to be taken.97 FPIC is probably
one of the most relevant rights in the context of land grabbing as, in most situations, the lease of lands between investors, corporations and governments takes place without any consultation of the local indigenous communities.
In the context of the global land rush, it is importantto highlight that FPIC is not a privilege that is sometimes
given to communities: it is a right with which governments
and project proponents are required to comply. This argument is important as, in many situations, governments
resist the implementation of FPIC based on the argumentthat indigenous peoples should not have a privilege. It isalso worth noting that FPIC is increasingly recognized ininternational voluntary industry standards, which are rulesthat companies voluntarily agree to comply with so that
their activities meet consumer expectations on humanrights and sustainability.
Regarding indigenous peoples’ specific rights, it isalso worth noting the current process of drafting a United95

See: Janet Pritchard, Feja Lesniewska, Tom Lomax, Saskia Ozinga and Cynthia Morel (2013), “Securing community land and resource rights in Africa: A guide to legal reform and best practices”,(FERN, FPP, ClientEarth and CED, December 2013), p. 26.
96 UN Declaration, Articles 32.2 states: “States shall consult andcooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain
their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitationof mineral, water or other resources.”
97 Marcus Colchester and Maurizio Farhan Ferrari (2007), “Making Free, Prior and Informed Consent Work: Challenges andProspects for Indigenous Peoples”, (Forest Peoples Programme,
Moreton-in-Marsh, 2007).

41

Nations Declaration on the rights of peasants and otherpeople working in rural areas. This process is now well underway in the UN as, in 2010, the Human Rights Council
mandated the Advisory Committee to undertake a preliminary study on ways and means of further advancing therights of people working in rural areas, including women,in particular smallholders engaged in the production offood and/or other agricultural products. In 2011 and 2012,
the Advisory Committee submitted two studies, in accordance with relevant Human Rights Council resolutions. In
September 2012, the Human Rights Council adopted theresolution to establish an open-ended intergovernmental
working group on the rights of peasants and other people
working in rural areas, on the basis of the draft submitted
by the Advisory Committee. The current draft mentions
the particular situation of indigenous peasants.98

3.2 Business, investments, andhuman rights
As highlighted earlier on, most of the land grabbing isbeing undertaken by the private sector, corporations andinvestors, with the support of governments. Over the last
10 years, the UN Human Rights System has been focusing a great deal of attention on the relationship between
business and human rights. This has involved different
initiatives, including the development of a set of guiding
principles on business and human rights and the establishment of a working group on the issue. The former UN
Special Rapporteur on the rights of indigenous peoples
also dedicated a specific report to the issue of extractives
industries and indigenous peoples.99 Apart from corporations, the other important actors are investors and, assuch, the law governing investments and its relationshipwith indigenous peoples’ human rights also represents animportant aspect of the relevant legal framework in thearea of land grabbing.

Business and human rights
At the international level, a leading initiative in this areais the work conducted under the leadership of Professor
John Ruggie, the United Nations Secretary-General’sSpecial Representative on Business and Human Rights.
Ruggie proposed a UN framework on business and hu-

98 The draft is available at: http://www.ohchr.org/Documents/HRBodies/HRCouncil/WGPleasants/A-HRC-WG-15-1-2_En.pdf
99 Report A/HRC/24/41, Extractive industries and indigenous peoples.
Report of the Special Rapporteur on the rights of indigenous peoples.

man rights, which has been adopted by the UN mechanisms. The UN ‘Protect, Respect, Remedy’ framework is
made up of three pillars:•••

the State’s duty to protect against human rights
abuses by third parties, including business;the corporate responsibility to respect humanrights, which means avoiding infringements of therights of others;
greater access of victims to effective remedy, judicial and non-judicial.

The Framework is based on the argument that international human rights standards are not binding on corporations as such but that, nevertheless, States are under
an international obligation to ensure that corporations do
not violate fundamental human rights when operating domestically or abroad (Protect). Additionally, corporations
themselves must respect human rights, despite not being under an internationally-based duty to do so, whichmeans acting with due diligence in order to avoid infringing the rights of others, and addressing any harm that
does occur (Respect). Finally, both States and companies
must ensure that effective grievance mechanisms, bothjudicial and non-judicial, are available for victims of abuse(Remedy).
The Human Rights Council unanimously approved
the Framework in 2008 and extended the Special Representative’s mandate until 2011 with the task of ‘operationalizing’ and ‘promoting’ the Framework. As part of this effort, the Special Representative has notably developed aset of ‘Guiding Principles on Business and Human Rights’
for the implementation of his ‘Protect, Respect, Remedy’
framework, which were formally endorsed by the Human
Rights Council in June 2011. Overall, however, both theframework and the guiding principles remain extremelyvague and weak with regard to both indigenous peoples’
rights and land rights. Generally, the Framework and the
Guiding Principles establish broad standards that lack any
specific focus on or mention of indigenous peoples’ rights
despite the impact of corporations on these rights. In thecontext of land grabbing and indigenous peoples, it isworth noting that the framework and the guiding principles
do not refer either to land grabbing or to indigenous peoples. These principles could nonetheless present some
opportunities for supporting indigenous peoples’ rights inthe context of business responsibilities and States’ obligations to control the actions of companies. Moreover, it
should be noted that, in June 2014, the Human Rights
Council adopted a resolution calling for the developmentof a binding treaty on corporate responsibility in the areaof human rights. This could provide a great opportunity

42

for influencing the development of legal obligations in thisarea.

Business and financial initiatives
A large part of the human rights and business agenda
relies on the role of business itself. Many corporations,but also financial institutions and investors, have started
to adopt their own voluntary codes of practice and otherbenchmarks to address human rights. These initiatives
are driven at the operational level of corporations but
also at a macro level, as industry initiatives, and even bymore global oversight mechanisms such as the UN Global
Compact.100 To some extent, all these initiatives are relevant in the context of land grabbing as these voluntary
initiatives increasingly include some form of social andenvironmental impact assessment.
An important aspect of the increased focus on humanrights in the context of private businesses and their operations relates to the multiplication of voluntary industry
standards. While these standards are totally voluntary andgenerally left to the monitoring of the corporations themselves, some of these initiatives, and notably the sectoral initiatives, are directly relevant to the issue of land
grabbing. Probably the most relevant of these in termsof their potential impact on land grabbing are the Forest
Stewardship Council (FSC) for the sustainable production of wood and paper, the Round Table for Sustainable
Palm Oil (RSPO) and the Round Table on Responsible
Soy (RTRS). These are all industry-led initiatives to establish certification schemes that will ensure that production follows commonly agreed environmental and social
standards. For example, if a palm oil company decides tobecome a member of the RSPO, it must comply with thestandards contained in the RSPO Principles and Criteria.
All these schemes are voluntary, however, and therefore
cannot be legally enforced, although this can to some extent be encouraged by governments and also often offers
potential avenues for mediation or for making complaints
to the Ombudsman or related institutions.101
The financial sector has some corporate commitment
instruments that could potentially be relevant to land is-

100

101

The UN Global Compact is a principle-based framework forbusinesses, stating ten principles in the areas of human rights,
labour, the environment and anti-corruption. See: https://www.
unglobalcompact.org
For a detailed analysis of all these initiatives, see: S. Heri, E.
Bürgi Bonanomi, K. Gehne, A. Ten Kate and S. van der Wal(2011), “International instruments influencing the rights ofpeople facing investments in agricultural land” (SOMO/Oxfam
Novib/IL, January 2011).

sues. The first is the Equator Principles (EPs). In total,
68 financial institutions from 27 countries have signed up
to the EPs, which in practice means that, for specific project finance loans, they promise to live up to a number ofstandards, mainly those of the International Finance Corporation (IFC), the private sector arm of the World Bank.
A number of State-controlled banks and agencies benchmark projects against the Performance Standards of theInternational Finance Corporation (IFC, part of the WorldBank Group).102 The IFC performance standards state
that, for projects with significant adverse impacts on affected communities, the process should ensure their free,prior and informed consultation (though not necessarily
consent). A mechanism also needs to be established forconcerns and grievances raised by individuals or groups
from among communities affected by such projects.
It is worth noting that a significant part of the investments come from the financial development institutions.
Many of the large-scale investments in agriculture and biofuels are driven by the investment of semi-public investors
such as, for example, development finance institutions.103
In recent years, these institutions have largely invested in
the agriculture sector in the form of agriculture funds orinvestments in equity. By channelling finance into private
equity, investments, hedge funds or funds-of-funds to theprivate sector and supporting investments in agribusiness,these public development institutions are directly involvedin supporting projects that can result in land grabbing.104
These institutions have very weak internal guidelines andoversight mechanisms. One of the conclusions drawn by
Ten Kate and van der Wal in their detailed analysis of allthese initiatives is that overall financial sector-specific instruments are too vague to be effective, Corporate Social
Responsibility is too reliant on corporations’ goodwill and,in general, all these initiatives - which are voluntary - donot specifically address land rights and lack any form ofteeth to be implemented.105
Regarding the business and human rights framework,
it is also worth noting the recent initiative on the extraterritorial obligations of States when it comes to human
102

103
104
105

43

This includes 32 export credit agencies from the OECD, the Multilateral Investment Guarantee Agency (MIGA), European Development Financial Institutions (EDFIs) and, to a large extent, also
the European Bank for Reconstruction and Development.
Development finance institutions are specialized developmentbanks that are usually majority-owned by national governments.
See: APRODEV, “Policy Brief: The Role of European Development Finance Institutions in Land Grabs”, May 2013.
A. Ten Kate and S. van der Wal (2011), ‘Company commitment
instruments to safeguard the food/land rights of people facing
land use shifts’, in S. Heri, E. Bürgi Bonanomi, K. Gehne, A. Ten
Kate and S. van der Wal, “International instruments influencing the rights of people facing investments in agricultural land”(SOMO/Oxfam Novib/IL, January 2011).

rights provisions. The notion of extraterritoriality is extremely important in this context, as it means that Statesshould apply the same human rights standards they apply
to nationals living in their territory (including corporations)to those operating abroad. This notion of extraterritorial
obligation could then have an important impact on the responsibilities of States to impose human rights obligations
on companies acting abroad. From this perspective, therecent adoption of the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights could represent an important stepin the right direction. These principles were adopted at agathering convened by Maastricht University and the International Commission of Jurists, a group of experts in international law and human rights, in 2011. The Maastricht
Principles clarify the human rights obligations of States
beyond their own borders in the area of economic, socialand cultural rights. This set of principles represents animportant review and affirmation of the States’ obligation,
notably, to guarantee that the human rights obligations
they have signed up to in the area of economic, socialand cultural rights are not violated by their own citizens(including corporations and investors) abroad. As such,
this represents an important legal document despite thefact that it has not yet been formally endorsed within theinternational legal framework.

International investment law
Increasingly, NGOs and other civil society organizations
have started to realize that using the investor-state arbitration mechanisms may be one of the most relevant waysof accessing some forms of legal remedy. Investor-state
arbitration settles disputes between an investor and ahost state using an international arbitral tribunal. Theseare very efficient tribunals which, compared to other international mechanisms, receive a very high level of implementation from both States and investors.
The relevance in the context of land grabbing revolves
around the fact that one of the main drivers of the current
land rush is investment. It is not possible to quantify accurately the number of bilateral or international investment
treaties or agreements signed regarding land investments
but it is certain that there are many. Most of these investment agreements incorporate some form of remedialmechanism to allow investors to take disputes to arbitration. While, in the past, these mechanisms were mainly
used by investors to protect their own investments, overthe past 10 years, civil society organizations have started
to become involved in investor-state arbitration proceedings in order to highlight the need to include public inter-est factors in these natural resource investments. Under
these mechanisms, there could be scope to challengesome of the investment treaties that are directly resulting
in indigenous peoples’ loss of lands and access to natural
resources.

3.3 International environmental law
Another area of international law that is increasingly relevant in the context of land grabbing and peoples’ rights
is international environmental law. While environmental law is generally more concerned with protecting thenatural environment (sometimes to the detriment of therights of indigenous peoples), there are ever more synergies between human rights and environmental protection in general. Recent developments concerning theimplementation of the Convention on Biological Diversity(CBD) are relevant in the context of land grabbing. Even
though there are some issues regarding the fact that theConvention refers to indigenous and local communities
rather than indigenous peoples and local communities,106
the CBD could offer a place in which to challenge land
grabbing.
Recognizing the importance of indigenous peoples’
traditional knowledge and sustainable practices, the CBDstipulates that States Parties should respect, preserveand maintain the knowledge, innovations and practices ofindigenous communities that embody traditional lifestyles
relevant to the conservation and sustainable use of biological diversity (Article 8(j)) and protect and encouragecustomary use of biological resources in accordance withtraditional cultural practices that are compatible with conservation or sustainable use requirements (Article 10(c)).
The Akwé: Kon Voluntary guidelines adopted in 2004
by the 7th Conference of the Parties to the UN Convention on Biological Diversity also puts forward the idea that
States must ensure that no concession is issued over apeople’s lands and territories unless and until independent and technically capable organizations have performeda prior environmental and social impact assessment, supervised by the State. These voluntary guiding principles
specifically concern the conducting of cultural, environmental and social impact assessments for developments
proposed to take place on, or which are likely to affect,
sacred sites or on lands and waters traditionally occupiedor used by indigenous and local communities.

106 On this issue, see the Forest Peoples Programme’s regular updates: http://www.forestpeoples.org/topics/environmental-governance/international-processes/convention-biological-diversity-cbd

44

3.4 Guidance on land rights
Over the last few years, there has been an avalanche ofinitiatives and guidance issued by international and civilsociety organizations. For example, several international
agencies, such as UN Habitat or the UN Global Land Tool
Network, have highlighted how land rights are directly
impacting access to food and shelter and how, in return,landlessness is a strong predictor of poverty and hunger.107 While these guidelines and other similar initiatives
do not have the full force of the law, as they are voluntary
guidelines rather than binding treaties, they nonethelessrepresent an important aspect in the evolution of international law on the issue. The following overview focuses
only on some of the most directly relevant initiatives regarding land grabbing.

Voluntary Guidelines (VGs) on the
Responsible Governance of Tenureof Land, Fisheries and Forests
The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in theContext of National Food Security were developed under
the leadership of the FAO. While they are non-binding in
nature, they have been exposed to widespread consultation and review by both State and non-State actors alike.
More than 100 member countries of the UN’s Committee
on World Food Security have endorsed the Guidelines,
adopted in May 2012. The Guidelines provide guidance,
mostly to governments, on how to improve the development and implementation of land rights and tenure governance systems. They spell out the recognition andprotection of tenure rights, identify best practices for registration and transfer of tenure rights, make sure that tenureadministrative systems are accessible and affordable, ensure that investment in agricultural lands occurs responsibly and transparently and include mechanisms for resolving disputes over tenure rights. The Guidelines contain aspecific chapter regarding indigenous peoples’ land rights,
which makes several relevant recommendations with regard to protecting their rights. For example, section 7.3
states that: “Where States intend to recognize or allocate
tenure rights, they should identify all existing tenure rights

107 See, for example, UN-HABITAT, Secure Land Rights for All (UNHABITAT, 2008); and see the Global Land Tool programme at
http://www.gltn.net/enand right holders, whether recorded or not.”108 While notwritten directly to address land grabbing, the reference toStates’ obligations to recognize indigenous peoples’ land
rights even when national formal legal systems do not offers a very relevant tool in the context of land grabbing.

Principles for responsible
agricultural investment that
respects rights, livelihoods andresources
Promulgated by the World Bank Group, the FAO, the International Fund for Agricultural Development (IFAD) andthe UN Conference on Trade and Development (UNCTAD). The principles are:EU land policy guidelines
The EU Land Policy Guidelines adopted by the EU Council and Parliament are a common framework for the EU tointeract with developing countries’ bilateral and multilateral donors. They include policy and operational sections
which serve as practical tools for assessing land issues
at national level. The aim is to provide some guidelines
to EU governments and donors when they are engaged
in supporting land policy design and land policy reform
processes in developing countries.110

African Union Framework andGuidelines on Land Policy inAfrica (2009)

Principle 1: Existing rights to land and associatednatural resources are recognized and respected.
Principle 2: Investments do not jeopardize food security but rather strengthen it.
Principle 3: Processes relating to investment in agriculture are transparent, monitored, and ensureaccountability by all stakeholders, within a proper
business, legal, and regulatory environment.
Principle 4: All those materially affected are consulted,
and agreements from consultations are recorded
and enforced.
Principle 5: Investors ensure that projects respect therule of law, reflect industry best practice, are viableeconomically, and result in durable shared value.
Principle 6: Investments generate desirable socialand distributional impacts and do not increase
vulnerability.
Principle 7: The environmental impacts of a project arequantified and measures taken to encourage sustainable resource use, while minimizing the risk/
magnitude of negative impacts and mitigating them.

This land policy framework provides an overview of theimportance of land policies throughout the continent. As
such, it offers some guidance on conducting land reforms
and their importance, notably highlighting the need to include all stakeholders. This guidance and the framework
remain very limited when it comes to indigenous peoples,
however. There is only one limited mention of indigenous
peoples in the context of land-based discrimination. The
AU framework mentions:Overall, however, these principles have largely been criticized by civil society actors as they represent an attempt
to legitimize large-scale land acquisitions using the erroneous justification that such investments promote ruraldevelopment.109

However, this remains a very isolated statement regarding the rights of indigenous communities in Africa. Thereis a lack of integration and recognition of indigenous peoples’ rights in the document and, notably, regarding how
these rights should be respected and integrated during
land reform processes.

108 The Guidelines are available at: http://www.fao.org/docre/016/
i2801e/i2801e.pdf
109 See: Saturino Borras, Jr. & Jennifer Franco, Comment, From
Threat to Opportunity? Problems with the Idea of a “Code of Conduct” for Land-Grabbing, 13 YALE HUM. RTS. & DEV. L.J. 507(2010),see also: Why We Oppose the Principles for Responsible
Agricultural Investment (RAI): http://focusweb.org/content/whywe-oppose-principles-responsible-agricultural-investment-rai

45“Beyond the frequently acknowledged inequalities due to race, class and gender, the marginalization of particular ethnic groups with respect
to access to adequate land remains a perpetualsource of conflict. The marginalization of certain
categories of indigenous people such as the San
of Botswana; the Herero of Namibia; the Bakola,
Bagyeli and Batwa of the countries of Central Africa; and the Ogiek of Kenya, has become contentious. Land policy reforms must also addressthese concerns.”111

110 The guidelines are available at: http://ec.europa.eu/development/
icenter/repository/EU_Land_Guidelines_Final_12_2004_en.pdf
111 Land Policy in Africa: A Framework to Strengthen Land Rights,
Enhance Productivity and Secure Livelihoods (2010), p. 9.

CONCLUSIONS & RECOMMENDATIONST

he main conclusions that can be reached with regard to land grabbing and indigenous peoples are
as follows:

1. Land grabbing is specific, global,
and here to stay
From an historical perspective, land grabbing is not a totally new phenomenon. Indigenous peoples have faced
waves of land dispossessions over the previous centuries, with colonization being a tragic precedent. However,
it is important to see the current land grabbing process
for what it is. It is a new and global phenomenon as it isdriven by massive investments in agribusiness, mining,
biofuel production and other forms of large scale investments and mega projects. Investors see land and foodproduction as safe, sound and long-term placements.
What is specific about the current ‘land grab’ is the predominant role played by investors. This includes manydifferent types of investors such as sovereign wealthfunds, private equity funds, and other key investors in
the food and agribusiness industry. It also appears thatlending institutions play an important role in supporting such massive investments to acquire vast areas oflands. In this overall general context of land grabbing,the political, economic and legal frameworks usually
favour the investors rather than the local communities.
Laws and policies adopted by States, international financial organizations and investment funds mainly support
the rights of the investors to acquire indigenous peoples’
territories.
This phenomenon is global, although Africa seems
to be particularly targeted, and there are indications ofincreased land grabs across the globe. There is no indication that the considerable increased investments inland acquisition will change in the near future. Quite thecontrary, the current land grabbing is fed by an ever increasing demand for food production and biofuels, andthe new mandatory blending policies will only exacerbate the rush for land on which to produce these biofuels. The focus on climate change offsetting measures
will also only increase the pressure on land acquisition
for long-term investments.

46

2. Indigenous peoples are among the
primary and most vulnerable
victims
Local communities, fisher people, pastoralists and peasants are all directly affected as their lands are often
sold or leased to investors for little, if any, compensation. It seems, however, that the global rush for land
investments particularly affects indigenous peoples. Indigenous peoples often do not hold formal title to theirlands and their land rights are therefore not recognizedor protected by governments. The large-scale land deals
usually translate into the curtailing of customary or community access rights to lands, forest or natural resources, resulting in the loss of access to common land andwaterways, such as hunting, gathering, forest products,
fishing and grazing.
This global land grabbing is based on the wrong assumption, made by international institutions, States andprivate actors, that many lands are ‘marginal’, ‘under-utilized’ and ‘empty’ and should therefore receive massive
investment which will, in turn, produce development.
As with the colonial rhetoric, most of the lands that are
seen as ‘empty’ or ‘unproductive’ are actually lands onwhich indigenous peoples live. Combined with the factthat indigenous peoples suffer from chronically poor legal protection of their land rights, disempowerment andlack of proper demarcation of their lands, this approachmeans that their right to live on their lands is in danger.
Indigenous peoples are therefore particularly vulnerable
targets of the global land rush.

3. The legal framework regarding land
grabbing is complex
Land grabbing is protected and promoted via a complex web of interrelated legal and political frameworks,
including investment regulations, contractual obligations, bilateral investment treaties and environmental
agreements. This multiple layer of legal frameworks
applicable to land deals makes it extremely complex
to apprehend, and also creates a lack of clarity, transparency and certainty. The legal frameworks governinginvestments are extremely specialized, technical andopaque, and have been designed to protect the investors not the local communities. Because ‘land grabbing’is conducted by a multitude of non-State actors, notably
investors and corporations, it also involves complex legal approaches relating to the obligations of non-State
actors, notably regarding respect for human rights law.
In this very complex legal framework, the human rights
of indigenous peoples are very often ignored as norms
protecting investments often infringe on indigenous peoples’ land rights. In many of the countries concernedby land grabs, access to justice for indigenous peoples
within a local setting is often an illusory option, either due
to the fact that indigenous peoples’ land rights are notformally recognized under local or national legal frameworks, due to lack of remedies, or due to weak judiciary
processes. The application of international human rights- so hard won at the international level - represents animportant framework to be used in these contexts. Theinternational legal instruments adopted in recent years
with regard to indigenous peoples’ rights reflect the importance of land rights and highlight the need to address
land dispossession. From this perspective, it is imperative that indigenous peoples’ land rights become essential elements of any land deals signed across the globe.

To international institutions•••

International financial and development institutions should not support and encourage any investment project which might negatively impact
indigenous peoples’ land rights. They should
embrace and recognize indigenous peoples’
right to free, prior and informed consent. International development agencies need to reject andchallenge the wrongful discourses of ‘vacantland’, ‘idle land’ and ‘wasteland’.
International organizations supporting the development of new carbon trading initiatives need toensure that indigenous peoples’ land rights areintegrated and respected in their initiatives. Indigenous peoples should be recognized as the legal
owners of carbon credits generated from emissions reductions achieved within their territories.
International arbitral tribunals and other forms
of international investment arbitration need tointegrate and respect the rights of indigenous
peoples under international law when examining
litigation relating to land investments.

To the private sector

Recommendations•
To States:
•

•

•

•

•

47

States should review their legislation to ensurecompliance with indigenous peoples’ rights as set
out in the UNDRIP and ILO Convention 169, including their rights to land and natural resources;
States should urgently address and focus on
the violence, dispossession, forced eviction andoppression suffered by indigenous peoples as adirect or indirect consequence of land grabbing;
States should include the requirement for free, priorand informed consent as a condition in all agreements with investors whose operations will potentially have an impact on indigenous communities;
States should facilitate participatory community
mapping of indigenous peoples’ lands in order toempower local communities to assert their land
rights and provide them with land titles;
States should develop databases in which tosystematically record and publish land deals inorder to ensure more transparency and, ultimately, more accountability.

••

Investors and corporations need to respect indigenous peoples’ rights to land and natural
resources before undertaking any projects. Thisobligation is not dependent on the national legislation of the State in which they operate, or onwhether the rights to lands and natural resources have been demarcated and formalized.
Investors and corporations need to ensure thata process that ensures free, prior and informed
consent is in place before acquiring any lands
which might belong to indigenous peoples.
Investors should systematically scrutinize thelaw and contracts developed between States
and businesses before they support any investment, making sure that these this legal framework protects and respects the rights of indigenous peoples.

To Civil Society Organizations•

Civil society organizations should systematicallytarget the investors to make sure they are awareof the negative impact that their investments canhave on indigenous peoples’ land rights.

•48

Civil society organizations not working withindigenous peoples and indigenous peoples’organizations should create more synergies tojoin their efforts to address the negative impactof land grabbing. Contemporary land grabbing
affects many local communities and individuals,
such as peasants, farmers and fisher people.
Many local communities are losing their lands

to investors. This creates a momentum for civilsociety organizations to join efforts in pushing forlobbying, advocacy and law reform to achieve agreater place for land rights within international,
regional and national policies. This may require
greater and wider alliances between indigenous
and non-indigenous organizations.

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50

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ABOUT THE AUTHOR

Jérémie Gilbert is Professor of Human Rights Law at the University of Roehampton (United Kingdom). He has published various books, articles and book chapters on the rights of indigenous peoples, looking in particular at territorial
rights. He often works with indigenous communities and their representative organisations on cases involving land
rights. As a legal expert, he has been involved in providing legal briefs, opinions and carrying out evidence gatheringin several cases involving indigenous peoples’ land rights across the globe. He was one of the invited independent
experts for the United Nations Expert Seminar on Treaties, Agreements and other Constructive Arrangements between
States and Indigenous Peoples (2006), and he has served as a consultant for the Expert Mechanism on the Rights ofIndigenous Peoples (2015). He was a board member of IWGIA from 2012 to 2015.

52

Over the last few years, a massive increase in land investments- mainly in developing countries - has led to widespread grabbing of indigenous peoples’ lands. This land dispossession andland grabbing constitutes one of the most serious problems forindigenous peoples worldwide since it leads to loss of traditional
economic livelihood practices, the undermining of social organization and traditional institutions, and loss of cultural and spiritual practices. All of this causes poverty, food insecurity, social
disintegration, and loss of human dignity. While the phenomenon
is not new, as indigenous peoples’ rights have historically been
disregarded, there does seem to be an increase in the land grabbing and forced displacement now being suffered by indigenous
communities globally.
This land grabbing is driven by a range of actors, including largescale development and infrastructure projects, agro-investment
projects, extractive industries, green energy activities such as
biofuel production, and the establishment of National Parks andconservation areas. State and private actors such as corporations, but also international investors, are at the heart of the ‘land
rush’, which does not comply with international legal standards
regarding indigenous peoples’ rights.
This report is based on a seminar on land grabbing and indigenous peoples’ land rights organized by IWGIA in October 2014, in
which IWGIA’s partners from many parts of the world participated. The report analyses the nature and impact of land grabbing
on the rights of indigenous peoples, presents cases from Kenya,
Tanzania, India, Myanmar, Colombia, Chile and Russia, provides
an overview of the international legal frameworks that can beused to combat land grabbing and offers recommendations tostates, international institutions, the private sector and civil society organizations on how land grabbing could be addressed.

INTERNATIONALWORK GROUP FOR
INDIGENOUS AFFAIRS