Indigenous land and resource rights in Latin America

Land and land resources constitute the basis of indigenous poeples` life, existence and cultural identity. Land and resource rights are thus a key demand of indigenous peoples everywhere and particularly in Latin America. The purpose of this research project is to examine and compare the legal frameworks and policies concerning the land and resource rights of indigenous peoples in a group of selected Latin American countries, namely Bolivia, Ecuador and Peru. In these countries, indigenous peoples constitute majorities and are important political actors. Bolivia, Ecuador and Peru are characterized by a great geographical and ecological diversity with a considerable part of the existing natural resources being located on indigenous territories. Formally, the three countries show similarities concerning their commitment to indigenous rights. Their Constitutions recognize the pluricultural and multiethnic character of the state. In addition, they have ratified relevant international agreements such as the 1989 Indigenous Peoples` ILO Convention 169. Nevertheless, there are remarkable differences regarding these countries` legal and political history as well as their actual regulatory frameworks and policies concerning indigenous peoples` rights. This research departs from the premise that the relationship of indigenous peoples to their lands comprises a bundle of rights that make up the territorial nature of indigenous lands. These territorial rights include the authority to own, use, control and develop their lands and natural resources according to their own rules, cultural traditions and land tenure systems. The recent academic literature increasingly addresses the various aspects of indigenous peoples` territorial rights. However, more comprehensive research in this direction is needed. This comparative legal research has the aim to study all the fundamental aspects of indigenous peoples` territorial rights, in particular those related to the management of natural resources pertaining to the lands. This analysis will comprise the whole legal framework - including constitutional and secondary law - of the case study countries as well as the implementation of laws and political practice. Special attention will be given to the consistency between indigenous legislation and other branches of law, especially all sectoral laws concerning land, environment and natural resources. The implementation of laws will be a top concern, since the "gap" between existing legislation and political and administrative practice is considered to be the main problem in Latin America. The benchmarks for the evaluation of the national legal systems and policies will be the demands, proposals and initiatives of indigenous peoples, the constitutional commitments to indigenous rights, relevant international legal standards and innovative solutions for similar problems in other Latin American countries. Ongoing debates and reform processes will be followed with great attention. The results of this study will give new ideas to all those engaged in research on the advancement of indigenous peoples` rights not only in the case study countries but in the whole Latin America and beyond.

Self-determination and territorial rights are the main demands of indigenous peoples worldwide and particularly in Latin America. Recent international standard setting processes as well as constitutional reforms in Latin America helped raise awareness to the topic of indigenous peoples rights. The adoption of the United Nations Declaration on the Rights of Indigenous Peoples in 2007 was an important step in this direction. New Constitutions such as those of Ecuador (2008) and Bolivia (2009) recognize the plurinational character of the state and base society on principles that have guided the lives of indigenous communities, such as good life and the respect to the rights of nature or Mother Earth. It has become clear that the commitment to respect and ensure the rights of indigenous peoples is closely related to global objectives in achieving ecological sustainability and social harmony. Paradoxically the pressure on indigenous peoples lands and natural resources continues to increase. On the one hand, international and constitutional law recognize and protect the rights of indigenous peoples, but on the other hand, large-scale resource development projects and investments in the extractive industries severely jeopardize these rights. These two conflicting developments are the main topics of this research. The constitutional, legal, and political processes of three neighbouring Andean Amazonian countries with indigenous majorities - Bolivia, Ecuador and Peru - are compared as to their ways of dealing with international human rights and environmental standards. Indigenous lands and territories constitute the basis of these peoples existence, their social and cultural identity as well as economic livelihood. The evolution of agrarian law and politics of the three case study countries occupies a large section of this research, because of their fundamental role in the conservation, protection or restitution of indigenous lands. However, the recognition of individual or collective property rights is only one aspect of the territorial rights as claimed by indigenous peoples themselves and supported by international and constitutional law. The capability to control and use the natural resources belonging to these lands may be even more important than formal property titles. Although environmental law provisions and institutions have been created during the last decades, their implementation is still weak and lacks the integral treatment of land and land resources. Particularly the exploitation of mines and hydrocarbons - often located on indigenous peoples territories but owned by the state - may destroy other resources of vital importance such as agrarian land, water and forest. This research analyses the legal norms and politics dealing with the environment and the different types of natural resources. Special attention is given to consultation procedures of the peoples concerned and their faculty to decide their own priorities of development in accordance with their internationally protected right to self-determination.