access to justice, Environmental Rule of Law, human rights, indigenous peoples, land acquisition, mineral resource

In recent decades, a complex web of factors has led to land rushes and large-scale land acquisitions in Africa, Latin America, and Southeast Asia. In many instances, businesses and state bodies have obtained rights to large tracts of communities’ traditional land and converted the land to large scale agribusiness, mining, or timber operations. While the land acquisitions are often sanctioned by government licenses and statutes, in some cases they have been held to violate the human rights of the indigenous peoples who had lived on the land—rights that take preeminence over statutory arrangements. In a 2005 case in the Inter-American Court of Human Rights, the Yakye Axa indigenous people in Paraguay had been displaced from their land, and third parties had converted the land to commercial use. The community was destitute and not allowed to practice its traditional subsistence activities. There was little employment. Community members lived in extremely poor housing, lacked access to clean water and sanitation, and suffered high levels of disease. Schooling was inadequate. Although the community had submitted a claim to adjudicate its communal land more than 11 years earlier, the state had not adjudicated the claim. The Inter-American Court found several violations of the Yakye Axa community’s procedural and substantive rights. Recognizing that indigenous peoples have collective land rights, the Court relied on both article 21 of the Inter-American Convention and ILO Convention No. 169 in finding that indigenous property rights included a suite of other rights.d It stated that “protection of the right of indigenous peoples to their ancestral territory is an especially important matter, as its enjoyment involves not only protection of an economic unity but also protection of the human rights of a collectivity whose economic, social and cultural development is based on its relationship with the land.” Although the right to property could in some cases be balanced against other interests of the state, the Court held that, when making such an evaluation, the State must take into account the impact of loss of traditional territory on the people’s rights to cultural identity and survival. The Court ordered the State to demarcate the traditional land, to give it to the community, and to provide the basic necessities of life to the community until it recovered its land.