Losing their Land, Indigenous Peoples Turn to the Courts
By David Berry
The Yakye Axa are an indigenous community, part of the larger Enxet Sur people, who live in the remote Chaco region of Paraguay. For generations, members of the Yakye Axa community hunted and farmed on their ancestral lands within the Chaco. But today they are in dire poverty, living in shacks by the side of a highway, having been driven off their traditional lands. Like indigenous peoples around the world, the Yakye Axa had their land taken from them, and are struggling to get it back.
The Chaco is a fragile, unique ecosystem that is home to plants and animals found nowhere else on earth―and also home to almost half of Paraguay’s indigenous population. Unfortunately for the indigenous inhabitants, large-scale soy farmers and cattle ranchers have claimed the land and are rapidly destroying the Chaco: every day, nearly two square miles of forest is razed. This process is driving indigenous groups off their traditional land, leaving them with little access to food, water, or government services―and with few avenues to get their land back or gain compensation for it.
Across the globe, indigenous peoples like the Yakye Axa are losing historic lands to state development and corporate land grabs, resulting in economic hardship, hunger, displacement, and violence. For indigenous peoples, their traditional lands are more than just a possession; they represent essential ties to their ancestors, their culture, and their language. Losing their land means losing their way of life.
Increasingly, the Yakye Axa and other indigenous groups are turning to the courts in an effort to get their land back, or at least gain financial compensation or alternative lands. A new Open Society Justice Initiative study examines these efforts, with a particular focus on the ways indigenous communities and their advocates in Kenya, Malaysia, and Paraguay are using litigation to defend their rights and secure remedies for having their land taken from them.
The report is a harsh wake-up call. The use of litigation to secure indigenous peoples’ land rights is fraught with obstacles and shortcomings. Courts tend to focus on formal law and land title, while ignoring indigenous customs, history, and land usage. Indigenous peoples and their legal teams are usually submitted to legal processes which impose an onerous burden of proof on the indigenous plaintiffs. Furthermore, the general political and economic playing field is tilted against indigenous rights, usually favoring formal, individualistic, and commercial land possession. Other challenges are more material, including a general lack of affordable legal aid, language barriers, political and judicial corruption abetted by wealthy land developers, and the physical remoteness of plaintiffs from courts.
In short, litigation rarely results in the return of indigenous peoples’ lands. But the report does highlight the benefits of engaging in litigation. In some cases, indigenous groups have gained alternative lands or won financial compensation. Indigenous groups have also gained less quantifiable benefits through litigation, including official apologies, increased group cohesion, and cultural renewal. The leader of an indigenous group in Kenya that has gone to court to seek the return of stolen land said that because of litigation, “The community now believes they exist and they have a future. The case gave them psychological healing.”
As more and more indigenous groups turn to the courts as their last nonviolent option for justice, there is some evidence that the courts themselves may be changing in ways that favor these groups. For example, some courts have shifted the burden of proof from requiring indigenous communities to prove they own the land in question, to requiring the government or private interests to disprove indigenous ownership. And as the study suggests, even limited success in court can inspire other indigenous groups to undertake litigation. But many more changes and more litigation will be needed before indigenous peoples have a fair chance at defending their lands. For now, the Yakye Axa remain stranded at the side of the road.
David Berry is senior officer for communications with the Open Society Justice Initiative.