Land Issues Working Group ( LIWG ) Shearman & Sterling LLP. Customary Land Tenure Comparison Chart

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1 November 5, 2013 Memorandum To: From: Re: Land Issues Working Group ( LIWG ) Shearman & Sterling LLP Customary Land Tenure Comparison Chart As requested, enclosed please find a chart containing examples of legal protections for customary land tenure in various countries of the world, which is based on research undertaken in October Although we have consented to LIWG sharing this chart with third parties for informational purposes, third parties should not expect that the chart addresses matters relevant to them or, with respect to the matters actually covered, that they are covered with a level or depth or accuracy required for their purposes. Shearman & Sterling LLP makes no representations whatsoever as to the accuracy or completeness of the enclosed chart or as to its sufficiency or suitability for third party purposes. Shearman & Sterling LLP is not authorized to practice law in the People s Democratic Republic of Laos. The enclosed chart does not represent any particular views of Shearman & Sterling LLP. ABU DHABI BEIJING BRUSSELS FRANKFURT HONG KONG LONDON MILAN NEW YORK PALO ALTO PARIS ROME SAN FRANCISCO SÃO PAULO SHANGHAI SINGAPORE TOKYO TORONTO WASHINGTON, DC 599 LEXINGTON AVENUE NEW YORK NY Copyright 2013 Shearman & Sterling LLP. Shearman & Sterling LLP is a limited liability partnership organized under the laws of the State of Delaware, with an affiliated limited liability partnership organized for the practice of law in the United Kingdom and Italy and an affiliated partnership organized for the practice of law in Hong Kong.

2 CUSTOMARY LAND TENURE Examples of Laws from Various Countries Below please find a chart with examples of legal protections for customary land tenure in various countries of the world, as provided in constitutional, statutory and international law. In addition to highlighting formal recognition by state governments of customary rights (at the individual and communal levels), the below chart cites restrictions on the exercise of eminent domain, and granting of land concessions, with respect to traditional lands. Three examples are provided from each of Asia, Africa and South America, and two sources of international law are referenced. The cited provisions were taken from English translations that were available online. All bolding, underling and other emphasis in the cited provisions have been added. The year of adoption of each constitutional or statutory provision is indicated in the chart, but in some cases the cited provisions may have been added or amended at a later date, and we cannot confirm in all cases that the cited provisions are currently in effect or whether they have been modified. In countries with unstable political conditions, the effectiveness of the referenced constitutions or statutes may be disputed. Except as noted, the below chart does not address actual practices within the listed countries. A. Asia For a general resource guide, see Kirsten Ewers, Communal Tenure and the Governance of Common Property Resources in Asia (2011), available at 658e00.pdf. 1. Philippines Indigenous Peoples Rights Act (1997) 2(e): The State shall take measures, with the participation of the ICCs/ IPs [i.e., Indigenous Cultural Communities/ Indigenous Peoples] concerned, to protect their rights, and to ensure that members of the ICCs/IPs benefit on an equal footing from the rights and opportunities which national laws and regulations grant to other members of the population; and 7. Rights to Ancestral Domains. The rights of ownership and possession of ICCs/IPs to their ancestral domains shall be recognized and protected. Such rights shall include: a) Right of Ownership: The right to claim ownership over lands, bodies of water traditionally and actually occupied by ICCs/IPs, sacred places, traditional Comprehensive Framework: This act provides a comprehensive framework for recognizing and protecting the rights of Indigenous Cultural Communities/ Indigenous Peoples ( ICCs/IPs ) in their Ancestral Domains and Ancestral Lands, as defined below, and provides for expansive definitions of such protected rights and lands. Further, unlike in Cambodia, there is no requirement that such communal groups must be incorporated as a legal entity to be recognized by the government. -Protected Rights: The protected rights include rights to (i) ownership, (ii) develop and utilize the natural resources, and to enjoy the profits therefrom, (iii) transfer rights within members of the group, and (iv) rescind transfers made without obtaining proper consent of the

3 hunting and fishing grounds, and all improvements made by them at any time within the domains; b) Right to Develop Lands and Natural Resources: right to develop, control and use lands and territories traditionally occupied, owned, or used ; to benefit and share the profits from allocation and utilization of the natural resources found therein; the right to negotiate the terms and conditions for the exploration of natural resources the right to an informed and intelligent participation in the formulation and implementation of any project, government or private, that will affect or impact upon the ancestral domains and to receive just and fair compensation for any damages which they may sustain as a result of the project; and the right to effective measures by the government to prevent any interference with, alienation and encroachment upon these rights. 8. Rights to Ancestral Lands. The right of ownership and possession of the ICCs /IPs to their ancestral lands shall be recognized and protected. a)right to transfer land/property. Such right shall include the right to transfer land or property rights to/among members of the same ICCs/IPs... b) Right to Redemption. In cases where it is shown that the transfer of land/property rights by virtue of any agreement or devise, to a nonmember of the concerned ICCs/IPs is tainted by the vitiated consent of the ICCs/IPs, or is transferred for an unconscionable consideration or price, the transferor ICC/IP shall have the right to redeem the same within a period not exceeding fifteen (15) years from the date of affected parties (further described below). -Protected Lands - Ancestral Domains [ 3(a)]: all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IP their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals / corporations. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had access to for their subsistence and traditional activities - Ancestral Lands [ 3(b)]: land occupied, possessed and utilized by individuals, families and clans who are members of the ICCs/IPs since time immemorial, by themselves or through their predecessors in interest, under claims of individual or traditional group ownership, continuously, to the present except when interrupted by [similar reasons as described for Ancestral Domains], including, but not limited to, residential lots, rice terraces or paddies, private forests, swidden farms and tree lots. -2-

4 transfer. 11. Recognition of Ancestral Domain Rights. The rights of ICCs/IPs to their ancestral domains by virtue of Native Title shall be recognized and respected. Formal recognition, when solicited by ICCs/ IPs concerned, shall be embodied in a Certificate of Ancestral Domain Title (CADT), which shall recognize the title of the concerned ICCs/IPs over the territories identified and delineated. 12. Option to Secure Certificate of Title Under [Certain Existing Laws]. Individual members of cultural communities, with respect to their individually owned ancestral lands who, by themselves or through their predecessors in interest, have been in continuous possession and occupation of the same in the concept of owner since time immemorial or for a period of not less than thirty (30) years immediately preceding the approval of this Act and uncontested by the members of the same ICCs/ IPs shall have the option to secure title to their ancestral lands under the provisions of [certain acts]. 59. Certification Precondition. All departments and other governmental agencies shall henceforth be strictly enjoined from issuing, renewing, or granting any concession, license or lease, or entering into any production sharing agreement, without prior certification from the NCIP [i.e., National Commission on Indigenous Peoples] that the area affected does not overlap with any ancestral domain. Such certification shall only be issued after a field based investigation is conducted by the Ancestral Domains Office of the area concerned: Provided, That no certification shall be issued by the NCIP without the free and prior informed and written consent of ICCs/IPs concerned: Provided, further, That no department, government agency or Land Concessions: -Free and Prior Informed Consent ( FPIC ): As further described below, a concession cannot be granted without the FPIC of the affected ICCs/IPs, and such ICCs/IPs have the right to rescind transfers where consent was not properly obtained. -Definition of FPIC [ 3(g)]: [T]he consensus of all members of the ICCs/IPs to be determined in accordance with their respective customary laws and practices, free from any external manipulation, interference coercion, and obtained after fully disclosing the intent and scope of the activity, in a language and process understandable to the community: -Concessions: All government agencies are strictly enjoined from granting any concession without first obtaining a certification from the National Commission on Indigenous Peoples ( NCIP ) that the affected area does not overlap with any ancestral domain. Further, (i) such certification shall not be issued without the free and prior informed and written consent of the ICCs/IPs concerned, and (ii) the ICCs/IPs shall have the right to stop or suspend any project that has not satisfied this consultation process. -Right of Redemption: ICCs/IPs have the right to redeem a transfer of land or property rights to a non-member of the group, within 15 years of the transfer, where the (i) consent is vitiated (i.e., defective) or (ii) the transfer was made for an unconscionable right. -Participation Rights: ICCs/IPs have the right to negotiate the conditions for -3-

5 government owned or controlled corporation may issue new concession, license, lease, or production sharing agreement while there is a pending application for a [Certificate of Ancestral Domain Title]: Provided, finally, That the ICCs/IPs shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process. exploitation of natural resources, and to meaningfully participate in forming and implementing any project. -Right to Damages: ICCs/IPs are entitled to just and fair compensation for any damages sustained as a result of a project. 2. India The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) (2006) See text of full statute at n/laws/pdf/phil_indig.pdf. 3. (1) For the purposes of this Act, the following rights, which secure individual or community tenure or both, shall be the forest rights of traditional forest dwellers on all forest lands [which includes land of any description falling with any forest area], namely: (a) right to hold and live in the forest land [up to an area of four hectares, per 6] under the individual or common occupation for habitation or for self-cultivation for livelihood by a member or members of a forest dwelling Scheduled Tribe or other traditional forest dwellers; (c) right of ownership, access to collect, use, and dispose of minor forest produce which has been traditionally collected within or outside village boundaries; (d) other community rights of uses or entitlements such as fish and other products of water bodies, grazing and traditional seasonal resource access ; (l) right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use; Broad Scope of Property Rights: The rights of traditional forest dwellers shall be recognized and protected, which include (i) ownership, (ii) right to occupy (under individual or common form), (iii) use and development rights, (iv) custom-based rights, and (v) relief in the case of forced displacement (further described below). Restrictions on Diversion of Land -Rehabilitation: Forest dwellers have the right to in situ rehabilitation, including alternative land, where they were illegally evicted, without receiving their legal entitlement to rehabilitation prior to Diversion of Land: Forest Land may be diverted for specified public purposes (such as school and utilities), (i) upon the recommendation of the village assembly, and (ii) subject to limitations on the amount of land to be diverted (1 hectare) and number of trees to be felled (75) in each case. -Wildlife Conservation and Resettlement: Forest rights may not be modified or resettled for purposes of creating areas of wildlife conservation, unless (i) the process of recognizing forest rights in accordance with the Act has been completed; (ii) there is a threat of irreversible damage to wildlife; (iii) other -4-

6 (j) rights which are recognised under any State law or laws of any Autonomous District Council or Autonomous Regional Council or which are accepted as rights of tribals under any traditional or customary law of the concerned tribes of any State; (m) right to in situ rehabilitation including alternative land in cases where traditional forest dwellers, have been illegally evicted or displaced from forest land of any description without receiving their legal entitlement to rehabilitation prior to the 13th day of December, reasonable options are not available; (iv) a resettlement or alternatives package that provides for a secure livelihood for the affected individuals and communities has been provided (and such replacement land is ready); and (v) the village assembly has given its free, informed and written consent. Further, there may be no subsequent diversion of such land for other uses. (2) the Central Government shall provide for diversion of forest land for the following facilities managed by the Government which involve felling of trees not exceeding seventy-five trees per hectare, namely:- (a) schools; (b) dispensary or hospital; (c) anganwadis; (d) fair price shops; (e) electric and telecommunication lines; (f) tanks and other minor water bodies; (g) drinking water supply and water pipelines; (h) water or rain water harvesting structures; (i) minor irrigation canals; (j) non-conventional source of energy; (k) skill upgradation or vocational training centres; (l) roads; and (m) community centres: Provided that such diversion of forest land shall be allowed only if,- (i) the forest land to be diverted for the purposes mentioned in this subsection is less than one hectare in each case; and (ii) the clearance of such developmental projects shall be subject to the condition that the same is recommended by the Gram Sabha [i.e., village assembly] (2) forest rights may subsequently be modified or resettled, except [if]:- (a) the process of recognition and vesting of rights [is] complete in the -5-

7 [concerned] areas ; (b) [there would be irreversible damage to wild animals]; (c) [no] other reasonable options are [] available; (d) a resettlement or alternatives package has been prepared and communicated that provides a secure livelihood for the affected individuals and communities [and the replacement land is ready], (e) the free informed consent of the Gram Sabhas has been obtained in writing; Provided that [such land] shall not be subsequently diverted for other uses Cambodia Land Law (2001) Art. 4: The right of ownership applies to all immovable properties [including forest land, cleared land, land cultivated, fallow or uncultivated, land submerged ]. Art. 25: The measurement and demarcation of boundaries of immovable properties of indigenous communities shall be determined according to the factual situation as asserted by the communities, in agreement with their neighbors, and as prescribed by procedures... Art. 26: Ownership of the immovable properties is granted by the State to the indigenous communities as collective ownership. This collective ownership includes all of the rights and protections of ownership as are enjoyed by private owners. But the community does not have the right to dispose of any collective ownership that is State public property to any person or group The provisions of this article are not an obstacle to the undertaking of works done by the State that are required by the national interests or a national emergency need. Art. 27: the right of individual ownership of an adequate share of land Grant of Communal Ownership Rights: Indigenous communities are granted ownership rights and protections to their traditional lands (which is broadly defined) to the same extent as enjoyed by private owners. -Individual Rights: Individual members of the community are also entitled to the protections of this law, and their community may grant them ownership of an adequate share land. -Eminent Domain -Art. 26 provides that the grant of communal rights of ownership is not an -6-

8 used by the community may be transferred to them. Art. 28: No authority outside the community may acquire any rights to immovable properties belonging to an indigenous community. Eminent Domain: Art. 5: No person may be deprived of his ownership, unless it is in the public interest. An ownership deprivation shall be carried out in accordance with the forms and procedures provided by law and regulations and after the payment of fair and just compensation in advance. obstacle to the undertaking of works done by the State that are required by the national interests or a national emergency need. It is not addressed whether compensation must be provided. -However, Art. 5 provides that [n]o person may be deprived of his ownership, unless it is in the public interest and after payment of fair and just compensation. It is a reasonable interpretation that Art. 5 applies with respect to communally held lands, given that ownership of such lands is expressly granted to indigenous communities in Art pdf/Law%20on%20Land/Law%20on%20 Land,%202001(EN).pdf B. Africa 4. Tanzania Village Land Act (1999) 18(l) A customary right of occupancy [as evidenced by a certificate issued pursuant to this law] is in every respect of equal status and effect to a granted right of occupancy [i.e., formally titled land] and shall be- (a) capable of being allocated by a village council to a citizen [or] family of citizens. (c) capable of being of indefinite duration; (d) governed by customary law in respect of any dealings (h) inheritable and transmissible by For a general resource guide, see The Rights and Resources Initiative, Rights to Resources in Crisis: Reviewing the Fate of Customary Tenure in Africa (2012), available at nts/files/doc_4699.pdf. Equality of Customary Rights and Titled Rights: The law provides a procedure under which holders of customary land rights may obtain a certificate of customary right of occupancy, which shall be equal in status to titled land use rights. The customary land rights (i) shall be presumed to be of indefinite duration, (ii) may be allocated or assigned to members within the village, and (iii) are inheritable and conveyable by will. Eminent Domain -General Standard: The exercise of eminent domain with respect to customary rights be for public purposes and subject to prompt payment of full and fair compensation. -7-

9 will. (i) liable, subject to the prompt payment of full and fair compensation to acquisition by the state for public purposes in accordance with any law for that action. 3(l) The fundamental principles of National Land Policy [include] (h) to pay full, fair and prompt compensation to any person whose right of occupancy or recognized long-standing occupation or customary use of land is revoked or otherwise interfered with by the State [and] (0) enable all citizens to participate in decision making on matters connected with their occupation or use of land; 4(I). Where the President is minded to transfer any area of village land to general or served land for public interest [ which shall include investments, of national interest ], he may direct the Minister [of land administration] to proceed in accordance with the provisions of this section. -Specific Requirements: More specific provisions provide that proposed transfers or concessions for public interests are subject to the approval of the village counsel or a government minister, as well as procedural requirements (including notice and public comment). Prior to such transfer, the compensation must be agreed upon between the Commissioner of Lands and the village counsel (or affected individual right holders), and any replacement land shall be ready for transfer to the village. -There is also a provision by which individuals who hold customary rights may be compelled to leave the land, subject to receiving compensation. Although not specified, this may apply where an agreement cannot be reached. (3) The Minister shall cause to be published a brief statement of the reasons for the proposed transfer (4) and village council shall inform villagers of the contents of the notice. (5) Any person [with customary rights] may make representations to the Commissioner and to the village council on the proposed transfer of the land [which shall be taken] into account in any decisions... (6) Where the village transfer land [is] (a) less than 250 hectares, the village council shall submit recommendations for the proposed transfer to the village assembly for it -8-

10 to approve or refuse (b) greater than 250 hectares, the Minister shall, after considering any recommendations made by the village assembly, signify his approval or refusal to approve the proposed transfer. (8) No Village land shall be transferred: (a) until the type, amount, method and timing of the payment of compensation has been agreed upon between- (i) the village council [or individual customary right holders] and the Commissioner- or (c) if general or reserved land is to be exchanged with the village transfer land, that land has been identified and is ready to be transferred to the village. (I0) Where village transfer land or any part of it is Occupied by persons [who hold customary rights], the President shall determine whether those persons may continue to Occupy and use the land, subject to any terms and conditions, which he may Impose, or whether the rights Of those persons shall be Compulsorily acquired, subject to the payment of compensation 7(7)(c) A certificate of village land shall- affirm the occupation and use of the village land by the villagers under and in accordance with the customary law 27(I) A customary right of occupancy may be granted (a) for a term which may be indefinite or any length of time less than an indefinite term to a person who is a citizen, or a group of citizens all of whom are citizens provided that there shall be a presumption [of] an -9-

11 5. Uganda Constitution (1995) indefinite term Land ownership. (3) Land in Uganda shall be owned in accordance with the following land tenure systems (a) customary; (b) freehold; (4) (a) all Uganda citizens owning land under customary tenure may acquire certificates of ownership ; and (b) land under customary tenure may be converted to freehold land ownership by registration. 26. Protection from deprivation of property. (1) Every person has a right to own property either individually or in association with others. (2) No person shall be compulsorily deprived of property or any interest in or right over property of any description except where (a) necessary for public use or interest of defence, public safety, public order, public morality or public health; and (b) the taking is made under a law which makes provision for (i) prompt payment of fair and adequate compensation, prior to the taking ; and; (ii) a right of access to a court of law by any person who has an interest or right over the property. on_of_uganda.pdf. Recognition and Equality of Customary Rights: Customary ownership (in both individual and communal forms) shall be recognized at par with other land tenure systems. The laws establish a framework for obtaining certificates of registration of such rights. Eminent Domain: No property or property interest may be taken, except where necessary for public use or specified public purposes, under a law which provides for (i) prompt payment of fair and adequate compensation, prior to the taking, and (ii) a right of access to a court of law for interested parties. Land Act (1998) [Establishes procedures for obtaining certificates of ownership of customary -10-

12 rights.] See nda-land-act-1998http:// /doc/ /uganda-land-act National Land Policy (2011) 39. (a) The State shall recognize customary tenure to be at par with other Tenure systems; (b) The State shall establish a customary land registry for registration of customary tenure in its own form. ganda-land-policy-final-draft-30-march pdf 6. South Sudan (became an independent state in 2011) Transitional Constitution (2011) 166 (7) Rights in land and resources owned, held or otherwise acquired by the Government shall be exercised through the appropriate or designated level of government which shall recognize customary land rights under customary land law. (10) Communities and persons enjoying rights in land shall be consulted in decisions that may affect their rights in lands and resources [and] (11) be entitled to prompt and equitable compensation on just terms arising from acquisition or development of land in their areas in the public interest. e_draft_transitional_constitution_of_the_ ROSS2-2.pdf. Recognition and Equality of Customary Rights: As in Uganda, individual and communal forms of customary ownership are held equal with other forms of tenure. Eminent Domain -The Constitution provides that communities and individuals holding land rights be entitled to prompt and just compensation where land is taken in the public interest. -The Land Policy clarifies that the public purpose must be compelling, and that individuals and organizations may seek an injunction if there was not a compelling reason or if the state acted in an unfair manner. -Additionally, under the Land Policy, requisitioned land may not be subsequently transferred to private individuals. Draft Land Policy 3.8: Systems of community, or customary, tenure have considerable -11-

13 (2011) value in the lives of millions of Southern Sudanese The policy accords statutory recognition to community tenure on an equal legal footing with other forms of tenure 4.4: The exercise of th[e] authority [of eminent domain] is subject to the test of whether or not there are compelling public health, economic growth, or environmental protection objectives at stake... When exercising the power of eminent domain, government must demonstrate the compelling reasons for action and provide fair and adequate compensation to affected landowners in a timely manner. The law of eminent domain shall provide affected stakeholders, including individuals and organizations, with a legitimate interest to seek an injunction from the judiciary against the exercise of this authority, provided it can be shown this power was exercised in an arbitrary or unfair manner, without compelling reason, or in violation of the law Government s power of eminent domain is restricted to securing land for public use only, and not for subsequent transfer or sale to private individuals [G]overnment at all levels must exercise this authority with restraint, transparency, and accountability. Government authorities are required to provide clear public explanations when it exercises its authority and restricts or removes private or customary rights in land. t-land-policy. C. South America For a general resource guide, see Biodiversity Series- Roque Roldán Ortiga, Models for Recognizing Indigenous Land Rights in Latin America (2004), available at LENVIRONMENTFACILITYGEFOPERA -12-

14 7. Ecuador Constitution (2008) 8. Brazil Constitution (1998) Art. 57. Indigenous communes, communities, peoples and nations are recognized and guaranteed the following collective rights: 4. To keep ownership of their community lands, which shall be unalienable, immune from seizure and indivisible? 5. To keep ownership of ancestral lands and territories [and not be displaced ] 6. To participate in the use, usufruct, administration and conservation of natural renewable resources located on their lands. 7. To free prior informed consultation, within a reasonable period of time, on the plans and programs for prospecting, producing and marketing nonrenewable resources located on their lands ; to participate in the profits earned and to receive compensation for social, cultural and environmental damages If consent of the consulted community is not obtained, steps provided for by the Constitution and the law shall be taken. Ecuador/english08.html. Art. 231 [Native Populations and Lands] (0) Indians shall have their customs and traditions recognized, as well as their native rights to the lands they TIONS/Resources/Publications- Presentations/Biopublication2005Modelsfor Recognizing.pdf. These countries have also each adopted the treaty referenced in Item D.10 below. Recognition and Guarantee of Rights: Indigenous communities are guaranteed several collective rights, including (i) ownership of community and ancestral lands, (ii) use and administration rights, (iii) protection from displacement and (iv) participation in exploitation of resources as described below. Restrictions on Exploitation of Resources: Indigenous communities are entitled to (i) free prior informed consultation in plans for extracting and marketing nonrenewable resources, (ii) a portion of the profits from these projects and (ii) compensation for social, cultural and environmental damages. If their consent is not obtained, then eminent domain can be exercised in accordance with other provisions of law (though the language on this is not clear). Recognition of Rights and Exclusive Use: The traditional lands of Indians shall be recognized and protected. Indians are entitled to permanent possession and exclusive use of their land (subject to -13-

15 traditionally occupy, it being incumbent upon the Republic to demarcate them and protect and ensure respect for all their property. (2) The lands traditionally occupied by Indians are intended for their permanent possession, and they shall be entitled to exclusive use of the riches of the soil, rivers, and lakes existing thereon. (3) Hydric resources, including energy potential, may only be exploited and mineral riches mined [only] with the authorization of Congress, after hearing the communities involved, which shall be assured of participation in the mining results provisions regarding exploitation of resources, as described below). Restrictions on Exploitation of Resources: Natural resources may only be exploited with the authorization of Congress, after hearing the communities involved. The communities shall be entitled to participate in the mining results. Legal Recourse: Indians may enforce and defend their rights, and they shall be entitled to assistance by the Public Attorney s Office. 9. Peru Constitution (1993) (4) The lands referred to in this article are inalienable and indisposable Art. 232: Indians, their communities have standing to sue to defend their rights and interests, the Public Attorney s Office intervening in all the procedural acts.. tml. Art. 88. [The government] guarantees the right of ownership of the land, whether private, communal, or under any other form of partnership Art. 89. Rural and Native Communities are legally recognized and enjoy legal status. They are autonomous in terms of their organization, communal working, use and free disposal of their land, as well as economically and administratively... Art. 70. The right to own property is inviolable and guaranteed by the government... No one may be deprived of his property except for reasons of Recognition and Guarantee of Ownership: The right to communal ownership is guaranteed, and rural and native communities are legally recognized. Eminent Domain: Property may only be taken for a public need declared by law, and following cash payment of the appraised value and for damages. Judicial proceedings may be brought to challenge the government s determination of value. -14-

16 national security or public need, declared by law and following cash payment of the appraised value, which must include compensation for potential damages. Proceedings have been instituted before the Judicial Branch to challenge the value of property which the government has established in the expropriatory procedure. cons_doc/constitutions/data/peru/peru.pdf D. International Law 10. Indigenous and Tribal Peoples Convention (International Labour Organization Convention No. 169) 1989 Art. 2(2). Governments shall include measures for: (a) ensuring that members of [indigenous] peoples benefit on an equal footing from the rights and opportunities which national laws and regulations grant to other members of the population; Art The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. 2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession. Art The rights of the peoples concerned to the natural resources pertaining to their lands include the right to participate Comprehensive Framework: Convention No. 169 is the most comprehensive treaty on the rights of indigenous and tribal peoples. It has been ratified by about 20 countries, including Philippines, Brazil, Peru and Ecuador. Eminent Domain: Indigenous peoples shall not be removed from their lands, except where (i) necessary as an exceptional measure, and (ii) (a) their free and informed consent is obtained or (b) if consent cannot be obtained, appropriate procedures are following, including public inquiries and an opportunity for effective representation. -Compensation: Affected peoples shall receive (i) replacement land of equivalent value where possible (or money instead, if requested by the affected peoples); and (ii) compensation for loss or injury in connection with relocation. No Exploitation / Manipulation: Other people may not acquire ownership or possession of the land of indigenous people s by taking advantage of their customs or ignorance of the laws. -15-

17 in the use, management and conservation [thereof]. Art Subject to the following paragraphs peoples shall not be removed from the lands which they occupy. 2. Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned. 3. Whenever possible, these peoples shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist. 4. When such return is not possible, as determined by agreement or through appropriate procedures, these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable for their present needs and future development. Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees. 5. Persons thus relocated shall be fully compensated for any resulting loss or injury. Art. 17(3). Persons not belonging to these peoples shall be prevented from taking advantage of their customs or of lack of understanding of the laws on the part of -16-

18 11. United Nations Declaration on the Rights of Indigenous Peoples their members to secure the ownership, possession or use of land belonging to them. oads/2012/01/c169-indigenous-and-tribal -Peoples-Convention.pdf Art. 1: Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in international human rights law. Art. 10. Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return. Art.18. Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures Art Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or us. 3. States shall give legal recognition and protection to these lands, territories and resources. Art Indigenous peoples have the right to redress, by means that can include Near Universal Endorsement: This Declaration was adopted by the UN General Assembly, with a majority of 144 states in favor (including most Asian countries), and more states later providing their endorsement. As a Declaration of the General Assembly (rather than a treaty), it is not a legally binding instrument under international law. But it is nonetheless influential as a representing the development of international legal norms, given its near universal endorsement among members of the UN. See s/declarationontherightsofindigenouspeopl es.aspx. Acknowledgment of Ownership Rights: The Declaration expressly recognizes that indigenous peoples (as a collective or as individuals) have rights of ownership, development and control over their traditional lands. Eminent Domain: Indigenous peoples shall not be removed from their lands without their free, prior and informed consent and an agreement on just and fair compensation (which, unless otherwise agreed, will be in the form of equivalent replacement land). They shall also be entitled to restitution where their land has been taken without such consent. -17-

19 restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. 2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress. ments/drips_en.pdf. -18-