Strategic Litigation & Indigenous Peoples’ Land Rights

The Open Society Justice Initiative has released the latest report in its Strategic Litigation Impacts Series. Indigenous Peoples’ Land Rights, which was written by my friend and colleague Dr Jeremie Gilbert, explores the impact that strategic litigation has had on the recognition and respect of the land rights of indigenous peoples in Kenya, Malaysia and Paraguay. It is a through, well-written report, which draws on extensive interviews with the affected communities.

The report sounds a positive note regarding the increased effectiveness of litigation as a means of challenging the lack of recognition of land rights, despite the barriers which exist to pursuing such cases:

The use of strategic litigation as a tool to secure indigenous peoples’ land rights has been fraught with obstacles and shortcomings. Chief among them are courts’ typically weak knowledge of relevant legal norms, and their tendency to focus on formal law and land title, which ignore indigenous customs and land usage, and the international customary law statutes that protect them. 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.

Indigenous Peoples’ Land Rights also includes a section on the impact of such litigation on private interests, private actors and corporations. It found that such litigation can exacerbate tensions between indigenous communities and companies in some instances whereas in others, legal cases have encouraged commercial entities to “engage more with the community as a whole”.

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