The irreparable harms indigenous communities disproportionately suffer as a result of conservation-related displacements is vividly illustrated by the three case studies discussed in this Section. These cases arise from Minority Rights Group’s (“MRG”) legal work representing minority and indigenous communities around the world. Each one serves to illustrate the legal and political challenges associated with combatting human rights abuses that stem from conservation policies premised on the eviction of local communities, exposing the unacceptable human toll they exact on indigenous peoples. They underscore that to safeguard our environment, we must adopt conservation strategies centred on making indigenous peoples’ customary land rights effective in practice, particularly in the domestic legal regimes charged with implementing them.
4.1. The Human and Environmental Costs of Fortress Conservation: The Batwa of the Kahuzi-Biega Forest
The plight of the Batwa of the Kahuzi-Biega Forest in the DRC illustrates the human and environmental costs attendant to fortress conservation policies propagated by the conservation establishment and funded by large statutory donors in developed countries. The Batwa are an indigenous ethnic group and one of the most marginalised of all minorities in the Great Lakes region. Commonly referred to as “Pygmies”, they are a traditional, forest-dwelling community that has lived in symbiosis with the Kahuzi-Biega Forest in the South Kivu region of the DRC since time immemorial [112
The Kahuzi-Biega Forest is also home to Eastern lowland gorillas (a critically endangered species related to but distinct from the more well-known mountain gorilla). In 1970, the government enacted a law creating a national park called the Parc National Kahuzi-Biega (PNKB) under an initiative led by a Belgian conservationist. The creation of the PNKB led to the forced relocation of some Batwa families elsewhere within the forest. In 1975, the government expanded the PNKB area from 60,000 to 600,000 hectares, leading to the eviction of 3,000 to 6,000 Batwa individuals and restricting their access to their ancestral lands without compensation [112
During these evictions, the Batwa were violently driven out without warning and forced to find shelter among non-Batwa communities that discriminated against them. No relocation arrangements were made to assist the Batwa, they have received no compensation and have lived in extreme poverty as squatters in various rural areas surrounding the PNKB ever since. Conversely, non-Batwa have been allowed to remain in the park or received compensation. Any attempts to seek redress in domestic courts have been unavailing [112
The DRC has seized ancestral Batwa land without their consent or prior consultation. The forest from which they are now excluded provided them with security and sustenance as a source of food, medicine, and fuel. In addition, the Batwa’s ancestral territory is seen as sacred, inextricably linked to the spiritual and cultural integrity of the community and its traditional way of life [112
]. As such, the dispossession of the Batwa’s lands involves the violation of a series of inter-related human rights that have ongoing consequences for the community, threatening their very survival. To date, the DRC has failed to provide adequate redress. For this reason, in 2015, MRG and Environnement Ressources Naturelles et Developpement (ERND), a local NGO, lodged a complaint on behalf of the Batwa of the PNKB before the African Commission on Human and Peoples’ Rights (ACHPR or the Commission). The case remains pending [115
For the Batwa, the consequences of their eviction have been particularly harsh. As a direct effect of the dispossession of their territories and their continued inability to access the land following their eviction, they are presently denied meaningful access to, use of, and participation in decisions concerning their ancestral land, preventing them from pursuing their traditional way of life, cultural and religious practices, and livelihood. The Batwa have been displaced, forced to resettle among non-Batwa communities that routinely discriminate against them due to their ethnicity, and are denied access to the natural resources located on their ancestral lands without consultation or compensation. They are also deprived of access to the most basic of social services, including education and healthcare [112
Due to the deep-rooted ethnic discrimination they experience, the Batwa are excluded from local political councils and decision-making processes outside of their own group, further marginalising the community and rendering it politically vulnerable. They are chronically landless as non-indigenous customary laws do not recognise their rights. Landless and vulnerable, many Batwa must work the lands of their non-Batwa neighbours without pay in a situation the ACHPR has described as resembling slavery [114
]. Their makeshift settlements are far removed from health and education centres—that they would have difficulty accessing in any case due to persistent and insidious discrimination—and also lack access to roads, arable land, water and sanitation. They suffer high rates of malnourishment, disease, and mortality as a result of the harsh living conditions they experience on the outskirts of the park. The human toll has been enormous: by the early 1980s, 50 per cent of the Batwa expelled from their ancestral lands in the PNKB had perished [112
In recent years, the situation has continued to deteriorate as the DRC fails to uphold the Batwa’s human rights. This includes failure to protect the ancestral lands from commercial poaching, illegal mining, and timber extraction, even though the United Nations Educational, Scientific and Cultural Organization (UNESCO) declared the Kahuzi-Biega Forest a World Heritage Site in 1980. These activities (fuelled by the presence of armed rebel groups in the region following the Rwandan Civil War) have resulted in deforestation and a drastic decline in the endemic animal and plant species the PNKB was created to protect. Corrupt park guards either engage in illegal exploitation of the park or turn a blind eye to it. They allow non-Batwa communities to remain in the forest undisturbed even though they engage in activities far more harmful to the environment than those deriving from the Batwa’s traditional, low impact lifestyle [117
Moreover, the Batwa do not benefit in any way from the exploitation or revenue garnered from conservation and tourism royalties collected in relation to their ancestral land. Whereas the Batwa’s traditional knowledge allowed them to protect the forest and safeguard the territories and animals, now, some Batwa risk heavy fines, imprisonment, and even death by returning to the forest to collect herbs and wood and to hunt [112
]. Encounters with park guards have turned increasingly violent as members of the Batwa community report being beaten, tortured and arrested. Some have been shot dead; others harassed and intimidated for denouncing human rights abuses and standing up for their community’s rights [100
]. As tensions have escalated, park guards have resorted to collective punishment, raiding nearby Batwa villages, harassing and intimidating members of the community, destroying their property and burning down their houses. The DRC has failed to hold park guards accountable for these abuses. By contrast, several members of the Batwa community are in jail accused of illegally accessing their ancestral lands.
Following the paradigm shift inaugurated by the Durban Action Plan in 2003 [23
], several actors in the conservation establishment have adopted policies undertaking to respect indigenous peoples’ rights, including their right to free, prior and informed consent [11
]. One of the initiatives that has arisen under the new paradigm is the Whakatane Mechanism. It was developed in 2011 by IUCN to “address historical institutional injustices against indigenous communities in the name of conservation of natural resources on traditional lands” [122
]. The Whakatane Mechanism also aims to develop best practices of sustainable conservation that encourage partnerships between indigenous peoples, park authorities and local organisations.
In September 2014, the Batwa commenced a Whakatane dialogue process with PNKB authorities. It focused on addressing the immediate needs of the Batwa, including access to land, education, health and jobs, and capacity training to achieve long-term goals such as collective ownership and rights-based conservation. The parties discussed different proposals. Park authorities emphasised that under the PNKB’s strict protection scheme, the Batwa could not be restored to their lands; however, they suggested providing the community with alternate lands. A road map was adopted memorialising the park administrator’s commitments to redress the Batwa’s displacement. However, to date, no land has been allocated to the Batwa. The Kahuzi-Biega Whakatane Dialogue Process has broken down due to park authorities’ repeated failure to deliver on their promises. After years of protracted negotiations, many members of the Batwa community no longer believe that it offers any prospect of successfully resolving their situation.
The experience of the Batwa of the PNKB shows that despite efforts made to integrate indigenous rights into the new conservation paradigm, in practice, the suffering of marginalised indigenous populations caught in the cross-hairs of fortress conservation continues to be treated as regrettable, but necessary collateral damage. Sadly, the irreparable harm fortress conservation has inflicted on the Batwa community cannot be reversed. Even if they obtain a favourable decision from the ACHPR, several generations have now been born outside of the forest. The community has been dispersed. Without access to the forest, elders have been unable to transmit traditional knowledge and cultural practices to future generations and many members of the community no longer know how to live their traditional, forest-based lifestyle. Nevertheless, the community longs to return to the Kahuzi-Biega Forest, their “surrogate mother“ [123
]. Despite the difficulties and prolonged timelines, they see their case before the ACHPR as the only viable means of doing so.
4.2. The Limitations of Challenging Evictions Carried Out in the Name of Conservation in Court: The Endorois and Ogiek of Kenya
Litigation cannot undo the havoc wreaked on lives and communities after decades of forced separation from ancestral lands and ensuing landlessness. Yet, notwithstanding its limitations, seeking legal redress before international and regional human rights bodies is often the only avenue available to ensure the recognition of indigenous peoples’ land rights. Obtaining a favourable judgment however is only half the battle. As the Ogiek and Endorois cases show, after the protracted legal campaigns required to win a case at the international level, implementation often remains elusive.
Like the Batwa, the Endorois and Ogiek peoples are indigenous communities evicted from their ancestral lands in the name of conservation. The Kenyan government removed the Endorois in 1973 to create the Lake Bogoria Game Reserve. In October 2009, Kenya served the Ogiek with an eviction order, purportedly to conserve their ancestral lands in the Mau Forest. MRG has represented both communities in their cases before the ACHPR and the African Court on Human and Peoples’ Rights (the “African Court”), respectively. Despite obtaining favourable judgments, vindicating their rights, Kenya has failed to implement them [124
The Endorois are a semi-nomadic indigenous, pastoralist community who have herded cattle and goats for many centuries in the Lake Bogoria area of Kenya’s Rift Valley. They have a strong attachment to their land, which provides fertile pasture, medicinal salt licks for their cattle and is central to the community’s religious and cultural life. Following independence, ownership of the land passed to the State, who held it in trust, for the benefit of the community until 1973, when Kenya evicted the Endorois to create a game reserve. Their dispossession without consultation or compensation seriously interfered with their pastoralist livelihood and the exercise of their culture and religion. Following a series of failed attempts to have their customary rights recognised in domestic courts, the Endorois, represented by MRG and the Centre for Minority Rights Development (CEMIRIDE) (a local NGO), launched a case before the ACHPR [126
In February 2010, in the first ruling of its kind, the ACHPR rendered a decision, recognising indigenous peoples’ collective rights to their traditionally owned lands in Africa [102
]. The Commission further found that by restricting the Endorois’ access to ancestral lands, Kenya had violated several rights under the African Charter on Human and Peoples’ Rights (the African Charter), including their right to development [102
]. The ACHPR’s decision is ground-breaking because it held that Kenya had breached the African Charter by failing to seek the Endorois’ free, prior and informed consent or adequately compensating them for the eviction. It thus established, for the first time, that governments must engage with indigenous peoples in the development policies that impact them [102
]. Accordingly, the Commission recommended that the Kenyan government restore the Endorois to their lands and ensure their unrestricted access to Lake Bogoria and the surrounding area. It also recommended that Kenya pay compensation for the eviction and royalties to the community from the profits garnered from the reserve [102
Ten years later, Kenya has failed to comply with most of the Commission’s recommendations. Following a lengthy delay, in September 2014, the government gazetted a Task Force to implement the ACHPR’s decision. Unfortunately, the Task Force’s mandate was limited to exploring whether implementation was possible, rather than how to implement the decision. Moreover, the Task Force did not meaningfully include the Endorois nor did its terms of reference require consultation with the community. During its twelve-month operation, the Task Force failed to make meaningful progress and, to date, its mandate has not been extended [124
Importantly, the government of Kenya has failed to comply with the key recommendations of the decision, namely, to restore the Endorois to their ancestral lands and to compensate the community for the losses suffered. Although some progress has been made on revenue sharing, including a modest payment of royalties from bio-enzyme extraction ($
20,000 USD) [124
], the outcome is far from adequate. It was not until 2014 that the Baringo County government agreed to share a portion of the tourism revenues generated by the reserve. However, it has refused to pay royalties directly to the community and has placed restrictive conditionalities on the disbursement of funds, thus limiting the community’s ability to collectively decide how to spend the royalties to which they are entitled under the Commission’s ruling.
The Ogiek case appears to be following a similar pattern. The Ogiek are traditionally a forest-dwelling, hunter-gatherer community that has lived in the Mau Forest of Kenya since time immemorial. They continue to depend on forest resources although, following a series of evictions that have been ongoing since the colonial period, most are now primarily involved in agriculture and/or pastoralism. Although many Ogiek have land rights on the fringes of the forest, government policies of converting communal land to individual ownership led to much of it being sold off to others, jeopardising their livelihood and their ability to live collectively on their lands. In the first instance, colonial administrators implemented a series of measures—including through the creation of forest reserves ostensibly in the name of conservation—that resulted in the displacement of members of the community. Since independence, the Kenyan government proceeded in much the same fashion, breaking up the Ogiek lands, allocating parcels of it to third parties, including political allies, and permitted substantial commercial logging to take place [127
]. In a bid to preserve the remaining portions of the Mau forest that had not been degraded during and since colonisation, the Kenyan government proceeded to implement a series of conservation measures that resulted in further evictions of Ogiek. These measures effectively labelled them encroachers and banned them from the forest. They failed to recognise the crucial role the Ogiek have played (and continue to play) in preserving their ancestral lands, conveniently blaming them for the environmental damage the government’s own policies had hastened to inflict.
In October 2009, the Kenyan Forestry Service served the Ogiek and other inhabitants in the Mau Forest with a 30-day eviction order, purportedly to conserve the forest [127
]. MRG, together with CEMIRIDE and the Ogiek Peoples’ Development Program (OPDP), swiftly applied to the ACHPR for a provisional measure barring Kenya from proceeding with the threatened eviction. In November 2009, citing the far-reaching implications of the eviction on the Ogiek’s survival, the Commission referred the case to the African Court, where it became the first indigenous rights case it has decided [127
]. In a historic judgment rendered in May 2017, the African Court recognised the special relationship indigenous peoples have to their ancestral lands and held that the African Charter protects both individual and collective property rights [105
]. Crucially, the African Court recognised that as indigenous peoples, the Ogiek have a critical role to play in safeguarding their local ecosystems and in conserving and protecting their ancestral lands. It held that the Ogiek could not be held responsible for the depletion of the Mau Forest nor could it justify their evictions or the denial of access to their land to exercise their right to culture. The African Court reserved its ruling on reparations but ordered Kenya to take measures to remedy the violations it had found, including to the right to property [105
Since then, the Kenyan government has gazetted two Task Forces, purportedly to drive implementation of the African Court’s judgment. Like with the Endorois, the first Task Force’s mandate expired without issuing any recommendations or consulting the community on implementation. Kenya gazetted a second Task Force in November 2018 with an expanded mandate to include recommendations not only on implementation, but also on enhancing the participation of indigenous communities in sustainable forest management [128
To date, the second Task Force has failed to issue any recommendations and has extended its deadline, most recently delaying until 24 January 2020. To date, the Ogiek have not seen a Task Force report, even though they are the purported beneficiaries of the Task Force process. Of greater concern, in November 2019, following a 60-day notice period, the government of Kenya proceeded to enforce an eviction order against several Ogiek families in clear violation of the original judgment. This does not bode well for the Task Force’s final recommendations nor for the implementation of the reparations judgment when it is rendered.
In sum, despite the progressive role international litigation has served in defining and expanding the scope of indigenous peoples’ rights, as applied through regional human rights bodies, much work remains in the realm of implementation. Even when human rights tribunals render judgments in favour of indigenous groups, states often resist implementation. In this regard, members of the international community and donors must support civil society by demanding States comply with their international human rights obligations, particularly when they are given effect through international court judgments. In the indigenous context, doing so is often the only way to ensure domestic regimes give customary indigenous land rights legal effect. Failure to do so prolongs the injustice court judgments set out to redress and shows a reckless disregard for human rights institutions.
4.3. Conservationist Opposition to Indigenous Land Reform: The Adivasis of India
Like indigenous communities in the DRC and Kenya, the principal struggle of the Adivasis of India revolves around the recognition of their customary land rights and control over their traditional territories and resources [130
]. Adivasis largely correspond with the State recognised ‘Scheduled Tribes’ and are also commonly referred to as ‘tribals’ or ‘tribal peoples’ [131
]. The vast majority of Adivasis live in India’s forests, which have been at the centre of their traditional way of life for hundreds of years [132
]. Indeed, these communities maintain a symbiotic relationship with the forest, relying on it for their physical, cultural and spiritual needs, while contemporaneously protecting its environmental integrity [134
Despite specific protections afforded to them in the constitution, Adivasis are the most marginalised group in India [40
]. This stems in large part from a long history of discrimination and misappropriation of their lands and resources under colonial rule [137
]. Successive colonial legislation criminalised some Adivasis at birth [130
], expropriated wide swathes of the forest without any consideration of Adivasi customary ownership or land use [135
], and increasingly nationalised forest areas, depriving Adivasis of their rights to access and use their ancestral territories [140
]. The explicit purpose of these policies was to exploit the natural resources of the forests and maximise profits for the British populace [131
]. Colonial administrators in turn engaged in massive deforestation, razing the land for agricultural use and resource extraction [142
Exploitation of the forests have continued in the postcolonial era. Industrial and infrastructure projects have multiplied across resource-rich Adivasi territories. [40
]. These territories are increasingly exploited by the government or contracted to private corporations to extract valuable forest resources [143
]. While these activities disproportionately impact Adivasis, they do not receive an adequate share of the wealth derived from their lands [131
]. Worse, millions have been displaced from the forests to accommodate large-scale development projects. Indeed, Adivasis constitute nearly 50 per cent of persons displaced by development initiatives, despite being only eight per cent of India’s population [85
For generations, Adivasis ensured that forest lands and resources were judiciously used and conserved [133
]. This sustainable use was central to their traditional way of life as forest dwellers [40
]. Nevertheless, Adivasis are commonly evicted from their ancestral lands as a result of conservation measures [81
]. Like other States, protected areas have proliferated in India. As of 2019, it had more than 100 national parks and 550 wildlife sanctuaries [145
]. The rise in protected areas has been accompanied by increased displacement of Adivasis as a result [28
]. Millions now live in and around these protected areas, despite having used their intimate forest knowledge to safeguard these lands long before they were deemed in need of “protection” [147
]. Indeed, their responsible stewardship is the reason that the forests are worth protecting in the first place [136
]. Nevertheless, Adivasi participation is seldom considered in conservation initiatives. For example, the 1980 Forest Act provided for the conservation of India’s forests, but made no provision for Adivasi land rights [133
]. Instead, it paved the way for the mass evictions of Adivasis in the name of conservation [148
Adivasi groups are typically blamed for mass deforestation and other forms of environmental degradation [143
]. Traditional slash and burn practices are commonly denounced as environmentally destructive, despite a growing body of evidence suggesting that other factors are the primary cause of environmental damage [70
]. Even though forest area and quality has precipitously declined under State governance [135
] and international stewardship from conservation NGOs [81
], conservation policy still continues to embrace the misguided colonial belief that Adivasis are a “backwards people”, incapable of preserving forest resources without external expertise [152
]. In turn, they are removed from their lands in order to make way for outsiders to “protect” their ancestral territories without human interference. They are forcibly prohibited from returning by paramilitary-style ecoguards [153
]. This has resulted in numerous acts of violence, human rights abuses and a general resistance of State conservation initiatives [154
The adoption of the FRA in 2006 marked a seminal moment in the struggle to realise Adivasi forest rights [147
]. At first, advocates saw it as a promising development towards advancing indigenous land tenure. The FRA’s intent was to rectify the “historical injustice” of tribal land dispossession by formalising the land ownership and resource rights of forest dwelling communities “who have been residing in forests for generations but whose rights could not be recorded” [155
]. It delineates a framework and procedure to formalise the land rights of forest dwellers, enabling them to cultivate, occupy, and conserve their traditional territories [135
]. It also provides for the “right to protect, regenerate or conserve or manage any community forest resource which they have been traditionally protecting and conserving for sustainable use”, reinforcing the Adivasis’ role as custodians of the forest [149
]. Accordingly, the FRA was seen as central to sustainable development, effective conservation and the livelihoods of millions of Adivasis [156
Soon after the FRA came into force, obstacles to its effective implementation became apparent. Applicants needed to engage in an arduous claims process to enforce their rights under the FRA [155
]. While local bodies are charged with determining ownership and use rights, the FRA relies on state and central governments for its effective implementation [137
]. This foreign procedure does not resonate with Adivasi legal traditions and systems [138
]. Additionally, most Adivasis are extremely poor, illiterate, and live far from sites of power. Many do not understand the complicated claims process or lack the required documentation [133
]. Thus, the structural discrimination Adivasis experience has proved to be a significant obstacle to successful processing of claims under the FRA [149
]. Of the claims received so far, over one million have been rejected [133
Further troubling is the litigation instituted by former forest officials and various wildlife and conservation organisations challenging the constitutionality of the FRA [149
]. Instead of enlisting of forest dwellers (and their traditional knowledge) to their cause, these groups are seeking to defeat the legislation under the mistaken belief that these communities will irrevocably damage the environment if allowed to remain in the forest [154
]. The lawsuit ultimately led to the Indian Supreme Court ordering the evictions of all forest dwellers whose applications had been rejected under the FRA [159
], subjecting upwards of two million families to the threat of imminent eviction [147
In response, forest dwellers protested across India [160
]. Hundreds of experts and conservationists criticised the decision [161
]. For its part, MRG called upon India to reverse the Supreme Court’s Order [157
] and submitted a third-party intervention to the Court setting forth the applicable international standards on customary land rights and the well-recognised status of indigenous peoples as the best environmental custodians.
The Supreme Court stayed its eviction order in July 2019 to determine whether the claims process adhered to due process requirements [162
]. While the evictions cannot lawfully proceed for the time being, it leaves millions in legal limbo, contributing to yet another chapter in the long history of insecure land tenure for Adivasis. Despite the potential for the FRA to rectify colonial land injustices and promote secure land tenure, structural discrimination has weaponised it against indigenous peoples. Now, it falls to the Indian Supreme Court to ensure the FRA does not become yet another empty promise for Adivasis.