Argentina

Argentina’s Constitution, Article 75, recognizes Indigenous Peoples’ rights to land, and Argentina has signed ILO 169. Yet Argentina has failed to address the question of the overlap of Indigenous Peoples’ lands with PAs and has not completed implementation of recommendations from the Inter-American Commission on Human Rights (IACHR). The case was admitted to IACHR in 2006, despite the slow progress in negotiations achieved by the indigenous organization Lokha Honat since the original complaint was filed in 1998.[2] The national Congress began a new debate on indigenous rights when the Indigenous Territorial Emergency Law (Law 26.160), blocking eviction of Indigenous Peoples from the 8 million hectares of lands they claim, was set to expire in November 2017.[3] Proposals to develop a co-management approach to Mapuche lands in the Nahuel Huapi National Park have been weak.[4] In 2017, federal police evicted Mapuche community members who sought to occupy an area of the Nahuel Huapi National Park, wounding women and children.[5] In 2017, the Argentine government embarked on a national assessment of Indigenous Peoples’ lands.[6] Whether these steps have a positive outcome, and what decisions will be made in cases where indigenous lands overlap with PAs, will depend upon the Government of Argentina’s willingness to meeting its commitments. In 2016, the Argentine government joined with the Chilean government to explore co-management options with the Mapuche on lands they claimed, in a proposal for a UNESCO transboundary PA.[7]

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Australia 

Unlike in other British colonies, treaties with Indigenous Peoples were never signed in Australia. Archeological evidence shows that Aboriginal people lived in and managed the lands of what is now Kakadu National Park 80,000 years ago. The Australian government has taken steps to remedy past evictions[8] and to address Indigenous Peoples’ rights in PAs, including legal reforms, the declaration of indigenous PAs,[9] the positive use of World Heritage Sites to protect Indigenous Peoples’ lands from mining, and the provision of funds for protected-area management.[10] Australian Indigenous Peoples have taken innovative steps to maintain and assert their voices in protected areas and land management.[11] Experience in Australia also attests to the challenges of shared governance, power relationships, and interpersonal dynamics, which have sometimes impeded full and effective indigenous participation in decision-making.[12] 

Bolivia

Bolivia was an early pioneer in advancing Indigenous Peoples’ rights, recognizing “Indigenous Community Lands” (Tierras Comunitarias de Origen—TCOs) covering multiple indigenous communities (CIDOB 2000) and authorizing innovative park co-management regimes. The trend has now reversed, however. The government has taken actions to water down the recognition of indigenous rights, including: canceling the famous Kaa Iya National Park co-management agreement with the resident Isoceño Guarani organization (CABI), which sought the creation of the park and whose territory overlaps with the park; changing TCOs to Territorios Indigenas Originarios Campesinos in 2017 to open them up for colonization by settlers and to reduce the authority of indigenous governance; allowing highway construction and settler colonization of Tacana territories overlapping with Madidi National Park; and otherwise violating Indigenous Peoples’ rights.[13] A key example of continuing resistance and conflict is that of the TIPNIS (Territorio Indígena y Parque Nacional Isiboro Sécure) indigenous territory and national park. Since the 1990s, the Simané, Yuracaré, and Mojeño-Trinitario have sought to protect their lands from settlers and development, including a violent intervention by the state during a prolonged protest in 2011–2012 against the construction of a highway—a protest that received widespread support in Bolivian civil society. Settlement and highway construction (funded by Brazil’s National Bank for Economic and Social Development and the Inter-American Development Bank) are proceeding, despite continuing conflict.[14]

Botswana 

In Botswana, the water rights of the San and Bakgalagadi people were restricted as a way of forcing them to leave the Central Kalahari Game Reserve. The two groups won a court battle to protect their access rights to these resources, but the government of Botswana has been slow to protect these rights.[15] A national law enacted in 2014 denied San and other Batswana the right to hunt.[16] The San have employed legal strategies to obtain recognition for their hunting rights, and they have appealed to Prince Charles and the Dalai Lama for protection. The San, Nama, and others continue to suffer from the infringement of their rights in Botswana.[17] Human-rights violations include mistreatment, torture, and murder; the denial of rights to land, water, and other resources; forced relocation from traditional territories; and differential treatment before the courts. Indigenous Peoples have been removed from the Okavango World Heritage Site.

Brazil

In Latin America, ILO 169 protections are extended to the descendants of African slaves, as per the IACHR:

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Tribal peoples are peoples who are “not indigenous to the region [they inhabit], but that share similar characteristics with indigenous peoples, such as having social, cultural and economic traditions different from other sections of the national community, identifying themselves with their ancestral territories, and regulating themselves, at least partially, by their own norms, customs, and traditions.” This definition is in accordance with the provisions of Article 1.1.(a) of ILO Convention No. 169. 

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The 1988 Brazilian Constitution guarantees legal possession of traditional territories by Indigenous Peoples and African-descendant “Quilombolas.”[18] Despite the well-known good conservation performance of indigenous territories in the Brazilian Amazon,[19] many traditional communities have not been legally recognized or titled. In northern Minas Gerais state, where cerrado, caatinga and Atlantic rainforest biomes converge, Quilombola riverside communities were “cornered” by PAs created on their territories in 1998 as conservation offsets for the World Bank-financed Jaiba MegaProject.[20] Community leaders have reported coercion and physical violence, the destruction of homes, and the confiscation of livestock, as well as negative impacts on wellbeing due to a prohibition on the collection of forest products, agriculture, and fishing, and psychological trauma. In the face of their criminalization, these communities built the “Movement of the Peoples Cornered by Parks”, which, since 2010, has been seeking redress and promoting a conservation model that allows sustainable use. An impasse occurred in negotiations with the national government, which offered only to consider the communities for “agro-extractivism settlement,” a program that selects settlers in extractivist communities to receive concessions for extractive use. This offer does not address the Quilombola demand for titled territory. In February 2018, the Brazilian Constitutional Court upheld Quilombola claims to land titles on par with indigenous claims to titles. Powerful forces among the elite also want to use those lands, however, and they are pushing a bill in Congress that could alter the implementation of this constitutional protection. 

Cameroon

The Sangha Trinational World Heritage Site (TNS) is in the northwest of the Congo Basin where Cameroon, the Central African Republic (CAR), and the Congo meet. The TNS encompasses three adjoining national parks—the Lobéké National Park in Cameroon, the Dzanga-Ndoki National Park in CAR, and the Nouabalé-Ndoki National Park in the Congo—totaling 746,309 hectares. The parks are set in a much larger forest landscape, referred to as the TNS landscape, with a total area of 1,787,950 hectares. The TNS was added to the World Heritage List in 2012 for its outstanding natural values, with emphasis on its sheer size and the “ongoing ecological and evolutionary processes in a mostly intact forest landscape at a very large scale.” Lobéké was established in 2001 after a decade of activity in the region by conservation agencies, including WWF and the German development aid agency, GTZ. The park was created with the intention of integrating local communities and other stakeholders into the sustainable management of resources. This was achieved partially through the creation of committees to participate in the management of multiple-use zones. The World Heritage approach applied in Africa to date has failed, however, to acknowledge and support the territorial and human rights of Indigenous Peoples.[21]

Canada

The Canadian government is actively engaged in “healing” its relationship with Indigenous Peoples, including by harmonizing indigenous rights with protected-area legislation.[22] In 2018, the government split Indigenous and Northern Affairs into two departments—Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada. The change is designed to “modernize Government of Canada structures to enable Indigenous peoples to build capacity and support their vision of self-determination; and lead the Government of Canada’s work in the North.”[23] Taking into account the Supreme Court’s decision on Tsilqhot’in Nation v. British Columbia and the adoption of UNDRIP, Canada has embarked on a process to “establish a new, nation-to-nation relationship with Indigenous Peoples,” including in the protected-area system.[24] Canada has been adjusting its stance toward Indigenous Peoples since it incorporated the recognition and affirmation of Aboriginal and treaty rights in the Canadian Constitution in 1982. In the 1990s, court decisions began clarifying what this constitutional recognition meant. Initially, the Supreme Court determined that Indigenous Peoples in British Columbia (a Canadian province) had unresolved rights over their lands and forests because no treaty had been signed (as they had been in other provinces).[25] Since then, the Supreme Court has clarified that the Crown and governments have a duty to consult with Indigenous Peoples across Canada if any activity—including the establishment of PAs—might infringe on indigenous rights. Many Indigenous Peoples have been mapping and managing their territories for decades as a basis for negotiations. Although there have been strong critiques of shared governance arrangements and decision-making,[26] the Gwaii Haanas National Park Reserve and the Haida Heritage Site, and the Gwaii Haanas National Marine Conservation Area Reserve and the Haida Heritage Site, are often considered to be uniquely effective examples of collaboration.[27] In 2013, some First Nations in British Columbia joined in the world’s largest carbon sale involving the Great Bear forest[28] (the area is larger than Ireland, covering 74,000 km2), sharing the income with the British Columbian government after all their management costs are covered. The protection of the Arctic in collaboration with Indigenous Peoples is an urgent task, and progress is being made.[29]  

Chile 

Although demands for indigenous rights have a long history in Chile, including for a Mapuche state,[30] a remarkable turn of events occurred in 2017 when the Chilean president sought Mapuche forgiveness and promised change.[31] Chile unilaterally annexed Rapa Nui (also known as Easter Island) in the 1800s, forcing the Rapa Nui people to relocate to a single restricted zone. In 2018, Chile invited the Rapa Nui to manage a “national park” but did not recognize full Rapui Nui rights over their island. This follows Chile’s creation of a marine park around the island that is the size of Chile itself.[32] The Rapa Nui and the government of Chile will share the governance of the marine PA, which will allow traditional fishing.[33]

Colombia

Colombia is a high-biodiversity country with progressive recognition of the rights of Indigenous Peoples and Afro-Colombians. Indigenous territories were established as autonomous areas under the 1990 Constitution.[34] More than 510 indigenous territories (resguardos) cover 30 million hectares, almost one-third of the nation’s total area. The most biological diverse ecosystems in Colombia are in indigenous territories and, on the Pacific Coast, in Afro-Colombian territories. Afro-Colombians were afforded more restricted tenure rights and autonomy in 1993 under Law 70, which, although the most progressive law on Afro-descendants’ rights in Latin America, explicitly constrains Afro-Colombian authority in order to achieve conservation goals.[35] At the policy level, Colombia was a world leader in developing an innovative relationship between parks and people, despite the country’s civil war. It has been estimated that 29 of 54 national parks in Colombia overlap partially or completely with 53 de jure resguardos and six de facto indigenous territories.[36] The Colombian park service has respected indigenous autonomy in many of the parks that overlap with resguardos. The locations of coca production are also correlated with parks and remote jungles in which Indigenous Peoples live,[37] however, and Indigenous Peoples have suffered from the lawlessness and abuses associated with military incursions and drug-eradication programs. New threats to indigenous territorial rights arose during and after the negotiation of the Peace Accords in 2015 (signed in 2016), with the state identifying areas for the resettlement of peasants who fled their homes during the war as part of the peace agreement.[38] There are tensions over the authority of the park service in indigenous territories. For example, the U’wa people have requested the formal custodianship of the El Cocuy National Park, which overlaps partially with their titled territory. They have rejected co-management and demand that they are designated as the park’s environmental authority.[39]  

Republic of the Congo 

The customary land rights of hunter-gatherer Ba’aka in the Republic of the Congo’s Nouabalé-Ndoki National Park (NNNP) area are unrecognized, and meaningful Ba’aka participation in protected-area management is virtually non-existent. The NNNP, which was established in 1993, is the site of pioneering research into the ecology and behavior of “charismatic” animals such as the African forest elephant and the western gorilla. The area it encompasses is the territory of 4,000 Ba’aka and Bantu peoples. Nevertheless, the park was established explicitly as a “wilderness” area, and some 3,000 people were expelled without compensation. Today, Ba’aka are unable to hunt legally in the park or its buffer zone and, if they do hunt, they are liable to abuse, manipulation, and extortion by enforcement authorities. Although various legal avenues provide scope for a certain level of redress, the restitution of lands and traditional use rights seems a distant prospect. The establishment of a PA, based on outdated Western concepts in which local people living in their ancestral territories have no role, has caused a fundamental upheaval in the lives of thousands of Indigenous People; it is leading to the destruction of their culture and, ironically, it is also likely to fail in its main objective of conserving charismatic mammal species.

Democratic Republic of the Congo

DRC is a high-biodiversity country and home to at least 600,000 Batwa/Bambuti. In many cases, Batwa have been evicted or have otherwise suffered in the creation of Pas in DRC (often with funding from foreign donors). For example, the 6,000 Pygmies evicted in the creation of the Kahuzi-Biéga National Park in the 1980s were forced to survive as laborers after losing access to their lands and resources. The recent killing of a Pygmy youth in Kahuzi-Biéga[40] brought to the forefront questions about the role of foreign aid in the ongoing abuse of Indigenous Peoples’ rights in the establishment and maintenance of PAs in DRC. A promising alternative has emerged in an area where another national PA had been proposed: residents, including Batwa/Bambuti, made a counterproposal to establish a community-based reserve—the Itombwe Nature Reserve.[41] This would not, however, provide redress for the thousands of people deprived of their lands in the creation of PAs in the country.[42]  

Gabon

Gabon is home to self-identifying forest-dependent Indigenous Peoples, sometimes collectively referred to as the Pygmies of Gabon: including the Akowa, Baka, Bambongo, Baringa, Bebinga, and Bekui.[43] A study of the impact of the Ivindo National Park on the Baka illustrates the negative impact of Gabon’s PAs and the issues facing the Gabonese government.[44] Of all the countries in the Congo Basin, Gabon has the most regressive legal framework, and it fails to recognize customary rights.[45] Moreover, Gabon has no national laws pertaining to Indigenous Peoples. Gabon is in violation of UNDRIP articles 25, 26, and 27.[46]

Guatemala

Although Guatemala is signatory to ILO 169, Guatemalan Indigenous Peoples enjoy few of the rights afforded Indigenous Peoples in the rest of Latin America. Semuc Champey (a natural limestone bridge over the Cahabón River) was designated by law in 2005 and promoted as a tourist destination, and a clause in the law stated that 30 percent of profits were to be returned to the Q’eqchi’ Mayan communities, whose lands were taken. No payments have ever been made, however. When the communities peacefully occupied the park in 2015 to demand their compensation, the Guatemalan army brutally forced them off their lands. 

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In 2003, the UN Special Rapporteur for the Rights of Indigenous Peoples summed up the situation of Indigenous Peoples in Guatemala as follows:

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[T]he …condition of the Indigenous populations in Guatemala is the result of the long colonial oppression process against the Mayan people as of the [16th] Century, consolidated under the liberal national Government during the [21st] Century, upon the constitution of a governing class that based its power on large rural land property and the exploitation of Indigenous labor, within the framework of authoritarian and patrimonial regimes …

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[N]ew developments have worsened the situation …: the establishment of protected areas or forest reserves, and the granting of mining and forestry rights. As a rule these measures exclude the indigenous groups who have settled in or near such areas from exploiting the resources, fail to take into account their impact on the needs of the communities, make no provision to address such impacts and have been drawn up without consultation with those concerned.[47]  

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In 2018, fifteen years later, the current UN Special Rapporteur for the Rights of Indigenous Peoples summed up the situation of Indigenous Peoples in Guatemala as follows: 

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The root cause of the situation is land tenure insecurity. Guatemala has not adopted legislation nor a mechanism for the adjudication of the rights of indigenous peoples to lands, territories and natural resources. Many are left in a situation of total vulnerability in the face of competing interests and numerous projects that are carried out without consultations or the consent of the peoples concerned.

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"The criminalisation of indigenous leaders who seek specific and legal solutions to land disputes will only increase tensions in society. It is necessary that Guatemala identifies, confronts and starts to work towards the resolution of these structural problems."[48]

The 1989 Protected Areas Law lists certain areas as destined to become PAs. One of these is Sierra Santa Cruz, which is promoted to tourists; the area, however, is the traditional land of the Q’eqchi’, who have proposed its declaration as a “communal land and natural resources area” instead of a PA. “Communal land and natural resources area” is the translation of Xkolb’al, a Q’eqchi’ Maya word for an indigenous territory in which lands and natural resources are used, managed, and preserved by the Q’eqchi’ Mayan communities.[49] The proposed Sierra Santa Cruz PA does not respect UNDRIP or ILO 169 (to which Guatemala is signatory).[50]

India

Humans and wildlife live in close proximity in India, and conflicts are common.[51] “Project Tiger” has been the flagship program of India’s conservation efforts for decades and now encompasses 50 PAs, the management of which is funded through allocations to the Ministry of Environment, Forest and Climate Change (MoEF). When the Biligiri Rangaswamy Temple Wildlife Sanctuary (BRT) was declared in 1974, the Soliga indigenous communities living inside the sanctuary were forcibly relocated and banned from traditional practices. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) gives adivasi people the possibility of claiming rights to land and forest use, but the MoEF has systematically blocked the implementation of this law. The Ministry of Tribal Affairs released the regulations only in 2008 because the MoEF, perceiving the FRA as a threat, hurried to amend the Wildlife Protection Act to bring tiger reserves into its ambit in the hope of bypassing the FRA. Under the FRA, Soligas began filing claims in the BRT in 2008, and almost all households claiming individual rights to cultivated land received those rights in 2009. Later, 42 Soliga villages received community forest rights in the BRT, leaving 20 communities yet to receive such rights. In January 2011, however, the BRT was designated as a tiger reserve and 340 km2 in the sanctuary’s core zone was declared as critical tiger habitat, meaning that the eight communities in the core zone face eventual relocation. The 62 Soliga communities jointly devised and ratified a community-based conservation plan to enable them to play a central role in BRT management, but financial and state support has not been forthcoming. 

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The Baiga were evicted from the Kanha National Park and the Achanakmar Wildlife Sanctuary in the 1960s. Today, they are protesting government plans to evict their communities anew to establish the Kanha-Achanakmar tiger reserve corridor (a move promoted by WWF India).[52] The compensation given for earlier resettlements—0.25 hectares of farmland per household—was lost in corruption; in 2018, the Baiga are seeking full recognition of their rights to their land and resources, which are essential for their identity and survival. 

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National Geographic has estimated that 200,000 people in India have been evicted for conservation in the past few decades.[53] Government authorities destroyed almost 8,000 homes and forcefully evicted nearly 40,000 people in the name of conservation in 2017—an average of more than 20 homes destroyed and 109 people evicted per day.[54] Some of the 2017 evictions that were reported are outlined here.

Indonesia

The 1945 Indonesian Constitution recognizes the rights of Indigenous Peoples to their own laws and territories (masyarakat adat). Many laws and actions do not consider this, however, and Indigenous Peoples’ customary (adat) rights have been negotiated case by case.[55] The state has made a fundamental correction to its control over customary forests through Constitutional Court Decision No. 35/2012. This decision recognizes two types of forests with respect to rights: “forest subject to rights” and “state forest.” Customary forest is one of the categories of "forest subject to rights"; therefore, positioning customary forests as part of state forests is contrary to the constitution. Various policies have been created to translate Constitutional Court Decision No. 35/2012, but the achievements to date have been minimal, especially given the commitments made and energy spent by various parties. As of the end of 2017, only around 17,000 hectares of adat forests had been transferred to local control—and almost half of this is located outside the forest area. Data from the Alliance of Indigenous Peoples of the Archipelago (Aliansi Masyarakat Adat Nusantara—AMAN) indicate that 121 indigenous communities are potentially threatened by resettlement because they are living in conservation areas totaling 1.62 million hectares.

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In 2015, the Komnas Ham Human Rights Commission held hearings about human-rights abuses in seven regions of the country. One of the cases was that of the Kasepuhan, comprising 57 communities in Halimun-Salak, in Lebak District, Banten Province. The Kasepuhan were alienated from their territory when the Dutch colonial government established the area as a protected forest and effectively seized the community’s natural resources.[56] In 1992, an area of about 40,000 hectares was designated as the Gunung Halimun Salak National Park (GHSNP), and the park was expanded to 113,357 hectares in 2003. These changes in the governance of their territory, and restrictions on access to it, caused a decline in Kasepuhan’s quality of life and safety, including threats from park guards. After the district government passed legislation recognizing the territorial rights of the Kasepuhan, the Kasepuhan negotiated certain rights with the GHSNP management. In January 2018, the National Director for Conservation announced a new approach to the zoning of conservation areas, and he revealed the intention to establish pilot co-management partnerships with local and customary communities in national parks and conservation areas. This announcement contradicted a recent presidential decree, however, which emphasized enforcement measures such as the resettlement of communities outside national parks and the prosecution of encroachment. Meanwhile, Kasepuhan communities, and especially the women in those communities, remain vulnerable to a wide range of threats.

 
Kenya

Kenya’s 2010 Constitution protects communities' (including Indigenous Peoples’) rights to land. Although the Community Land Act was passed in 2016, the regulations have not been put in place to allow these rights to be realized. The National Land Commission was established in 2012 but has been ineffective. The Lake Bogoria National Reserve was designated as a World Heritage Site in 2011 without the consent of the Endorois, despite the 2010 finding of the ACHPR that the rights of the Endorois had been violated by their eviction from the PA in the 1970s. Moreover, the Kenyan government is yet to restitute land in the PA to the Endorois, as called for by the ACHPR. 

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The Ogiek lost part of their land to the Mount Elgon National Park in 1968. In 2012, the local government agreed that land in the 17,000-hectare Cheptikale Game Reserve belongs to the Ogiek, but Ogiek families were again forced from their homes on Mount Elgon in 2016.[57]  

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Sengwer families have been evicted from Embobut forest and their homes destroyed; a 2013 High Court ruling ordered ordered the status quo be maintained, meaning that the Sengwer should not be evicted by the Kenya Forest Service (KFS), but evictions continued. The World Bank Inspection Panel found the Kenyan government guilty of abuses against indigenous rights in 2013,[58] but evictions have continued. Between 2014 and 2017, over 1,500 Sengwer homes were burned by KFS, with another 300 burned this year alone. The impacts have been particularly severe on Sengwer women.[59] In 2018, the Office of the United Nations High Commissioner for Human Rights called on the Kenyan government and the European Union (which is financing a water infrastructure project on Sengwer lands) to uphold international human-rights standards.[60] The European Union suspended funding to the project after the killing of a Sengwer leader in 2018.[61] Finnish and international organizations appealed to the Finnish government to stop funding the Kenya Forest Service in light of their human-rights abuses of the Sengwer.[62]  

Mexico

Mexico has long supported the rights of local communities, including indigenous communities, to conserve and manage their lands.[63] In 1975, for example, the Mexican government granted the Seri (Comca’ac) a communal property title to Tiburon Island (Mexico’s largest island, at 121,000 hectares), Canal Infiernillo (“Little Hell,” the name given to the water in the strait between Tiburon Island and the mainland, so named because of the speed of the tide), and 249 km of coastline. The area became part of the natural PA “Islands of the Gulf of California,” in 1978, consolidating a 1963 presidential decree that designated the area as a nature preserve. The area is now co-administered as an ecological preserve by the environmentally oriented Seri tribal government. Tiburon Island is a rare intact example of Sonoran Desert habitat, with many species that are rare or have disappeared from the mainland. The waters surrounding the island host 34 marine mammal species, including sea lions, blue and fin whales, and the world's most endangered cetacean, a small porpoise called the vaquita. Five species of sea turtle thrive in these waters, and green turtles nest on the beaches. The Seri villages at Punta Chueca, and El Desemboque on mainland Sonora, are home to up to 700 Seri. The Seri are threatened on land by drug trafficking and on sea by pirates, but they are deputized to use arms to protect their biodiversity and have adapted their traditional system to successfully manage their fisheries.[64] Donors have provided crucial support, nurturing the Seri’s initiative to protect their lands and waters in collaboration with the Mexican government.

 

Myanmar

The Myanmar military government is negotiating peace with the Karen rebel army along the border with Thailand, an area that includes the Myanmar subregion of Tanintharyai. A local coalition, the Conservation Alliance of Tanawthari, released a report in 2018 denouncing the government’s plans to create PAs in Karen lands, a move they say threatens the peace negotiations because it jeopardizes the livelihoods and well-being of the Karen communities.[65] The new PAs would cover one-quarter of Tanintharyia. The Karen are seeking a moratorium on the expansion of PAs, along with recognition of existing local land management and conservation practices.[66] 

 

Nepal

In Nepal, 59 distinct Indigenous Peoples constitute 35 percent of the population. The 2009 country report of the UN Special Rapporteur on the Rights of Indigenous Peoples identified multiple violations of rights in the country’s national parks, including exclusion from access to resources and—in the case of Chitwan National Park—alleged “mistreatment, arbitrary detention and sexual abuse of indigenous villagers, in particular indigenous women.”[67] The Special Rapporteur recommended amendment of the National Parks and Wildlife Conservation Act to prevent further rights violations, enhance the participation of Indigenous Peoples in the management of national parks, and guarantee Indigenous Peoples’ access to natural resources and to a fair share of financial and other benefits. This revision has not been carried out, however. Moreover, Nepal’s 2015 Constitution fails to recognize Indigenous Peoples’ rights to land and natural resources, even though, in 2007, the country voted in favor of UNDRIP and ratified ILO 169.[68] Nepal’s national parks and other PAs were created in the territories of Indigenous Peoples without their consent.[68] Moreover, there is an ongoing failure to recognize and respect the custodianship and governance of Indigenous Peoples in the inhabited Himalayan national parks, including the Sagarmatha (Mount Everest) National Park and World Heritage Site. The Sherpa people and other Indigenous Peoples maintain many ICCAs in these PAs, including sacred places and community forests, grazing areas, and hunting and fishing areas governed by communities through customary institutional arrangements and customary laws.[70]   

 

New Zealand

The 1840 Treaty of Waitangi between the British Crown and Māori chiefs established the legal basis for Indigenous Peoples’ territorial rights in New Zealand. New Zealand has become a world leader in revising its protected-area laws and designations to address historical injustices and recognize indigenous rights.[71] The 1998 Ngäi Tahu Claims Settlement Act returned lands administered by the Department of Conservation to Ngäi Tahu, the traditional Māori owners; it includes recognition of their title to Mount Aoraki/Cook; the transfer of titles covering 35,000 hectares; the return of the Crown Titï Islands Nature Reserve; and the return of the Codfish Island Nature Reserve, which is now jointly managed by Ngäi Tahu and the state. Several areas of the South Westland World Heritage Area were also returned to Ngäi Tahu. Other settlements with Māori tribes, affecting lands administered by the Department of Conservation, include the return of lands and other constructive arrangements concerning existing PAs.[72]

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In 2012, the Waitangi Tribunal report found that the establishment and management of the Te Urewara National Park violated the Treaty of Waitangi. In the same year, the government and the Tuhoe iwi agreed on a comprehensive deed of settlement, in which both parties agreed that the land would become its own legal entity and would not be owned by anyone. With the Te Urewara Act (2014), the Crown ceded its ownership and the national park was decommissioned. The Te Urewara board now governs Te Urewara on behalf of the land as its own legal entity. Board membership has equal numbers of Tuhoe and Crown members, although it is agreed that the ratio will change in coming years until there are six Tuhoe and three Crown members. Te Urewera is the largest remaining area of native forest on the North Island and one of the country’s largest national parks; it includes multiple Māori Tuhoe Treaty lands. Māori have sought a different relationship with the state in relation to PAs to that created in Australia’s joint-management approach.

 

Nicaragua

Indigenous communities gained autonomy over their ancestral territories on Nicaragua’s Caribbean coast in 1987 through the enactment of a strong autonomy law, which, however, was ignored during the war (which ended in 1990). In 1997, the Bosawás Biosphere Reserve, “the heart of the Meso-American Biological Corridor” and the size of El Salvador, was declared an indigenous autonomous region, overlapping seven indigenous territories without the knowledge or consent of those communities.[73] In 2001, the IACHR determined that the Nicaraguan government was violating Indigenous Peoples’ rights to property protected by the American Convention on Human Rights. The Court noted that this right is a full collective ownership right to land, not a diminished type of property right (i.e. a usufruct right). In 2003, Nicaragua’s Law 445 bound the government to clear indigenous territories of invading settlers who lacked proper land titles. The Indigenous People inside the Bosawás Biosphere Reserve took the initiative to drive out invading settlers.[74] In 2016, the IACHR recommended that the Nicaraguan government protect Indigenous Peoples’ rights in Bosawás;[75] nevertheless, the conflict continued in 2017.[76]

 
Panama

Panama is home to 12 distinct Indigenous Peoples. Some of their territories have been designated as five semi-autonomous indigenous territories (comarcas) and others are claimed as collective lands (tierras collectivas). The government is yet to recognize a number of the customary lands claimed by the Bri Bri, Embera, Guna, Naso, and Wounaan, however, because the Ministry of Environment will not approve the granting of titles of lands in or near existing PAs or areas that might become PAs in the future. Law No. 72, passed in 2008, allows for the recognition of tierras colectivas. Enabling legislation was passed in 2010, setting out the steps needed for titling these lands. Despite the new law and procedures, however, the government has been slow to act, with only five tierras colectivas titled since 2010. Another 24 tierras colectivas are without title, mostly in the Darién and with some kind of overlap with protected areas. The lands lying in and near the Darién National Park have been denied title due to overlaps with either the park or its buffer zone. Approval is required from the Ministry of Environment, but it has been withholding this since 2015. In March 2018, under pressure from indigenous organizations, the Ministry gave its provisional approval for the title applications of some of these communities, but titles are yet to be forthcoming. 

 

Peru

The Peruvian government created reserves for “uncontacted peoples” in 2016 under Law No. 28736 (Law for the Protection of Indigenous or Native People in Isolation or Initial Contact).[77] The areas had been “territorial reserves” since 1997 and, under Law No. 28736 and its regulation, three territorial reserves were categorized as “indigenous reserves,” a category recognized as a legal figure in national regulations. The 1.3-million-hectare Sierra del Divisor National Park (one of the largest PAs in South America) was created in 2014. This national park partially overlaps the Isconahua Territorial Reserve, an existing reserve for uncontacted peoples; uncontacted people also live in and use other areas of the Sierra del Divisor National Park, where they are not protected.[78] Indigenous federations have proposed the creation of a binational reserve corridor for uncontacted peoples that would bridge the remote forests of Brazil and Peru.[79] The proposed corridor would cover 90,000 km2 of high-biodiversity rainforest, and its creation is supported by indigenous organizations and local authorities on both sides of the border.[80] The national governments of Peru and Brazil are yet to seriously pursue this proposal, however. 

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Uncontacted people and four Matsiguenga communities live in Manu National Park,[81] but, for decades, successive authorities resisted acknowledging this. The park’s management authority now recognizes that a large part of the park overlaps with indigenous territory, but the national government has not taken clear action to safeguard indigenous rights there. The Manu National Park Master Plan does not consider Indigenous Peoples in its management protocols. Recently, there have been positive signs of rapprochement between the park administration and FENAMAD, the federation that represents all Indigenous Peoples in that region of Peru, including the Indigenous communities inside the park. The park’s management authority is seeking the participation of the communities in updating the park’s master plan. Thus, the administration of the Manu National Park is responding to a more modern vision in which indigenous residents are a fundamental factor in park management. Progress is slow, however. Seventy percent of children under five in the park suffer from malnutrition, and families are highly vulnerable due to the restrictions the park places on them.[82]

  

Philippines

The Indigenous Peoples Rights Act (IPRA) established indigenous land rights in 1997, but inconsistencies with other laws has created confusion. The IPRA conflicts with the Mining Act of 1995, the Fisheries Code, the Forestry Code, and the National Integrated Protected Area System. At the request of Indigenous Peoples, the government created an Indigenous Peoples Consultative Body in 2006 to make recommendations for harmonizing the IPRA with UNDRIP (UNDRIP 2007). It also served to review the performance of the National Commission on Indigenous Peoples (NCIP), and help it to “free itself from historic inefficiency and corruption” and to improve the efficiency of awarding Ancestral Domain (AD) titles.

  

Tanzania

Tanzania began establishing PAs on indigenous lands and restricting local people from grazing cattle in “game controlled areas” (GCAs) in the 1950s.[83] Evictions and restrictions have grown with the engagement of foreign businesses involved in safaris and hunting—concessions that are lucrative sources of corrupt influence. In 2009, Otterlo Business Corporation (OBC) and the Tanzanian government evicted pastoralists from 1,500 km2 of dry-season grazing land designated as Village Land under the Village Land Act (5/1999) for the purpose of using the land for foreign hunting as a new GCA. The Loliondo Maasai opposed this eviction vigorously, and the Ngorongoro District Council rejected the OBC proposal for legal support to restrict use of the area to hunting only. In 2013, the Tanzanian prime minister declared that the Maasai could use the land but, in 2017, Maasai were again evicted, women raped, and cattle seized. By December 2017, the government position was that the OBC investment was needed: a special authority would be defined for the Loliondo area, and a new German project would fund community development for the people of Loliondo as part of the deal for new restrictions.[84] As of 2018, the State has not yet addressed the devastating impact of the foreign companies.[85]

 

Thailand

Thailand emerged in the twentieth century as a nation built by the military and financed not least by the liquidation of the country’s forests.[86] The expansion of PAs in Thailand began in the 1980s; today, an estimated 1.2–2 million Indigenous Peoples (known in Thailand as “hill tribes”) live in or around PAs and rely on forests for their livelihoods. The Thung Yai Naresuan Wildlife Sanctuary, which was declared in 1974, became the country’s first World Heritage Site in 1991. The Karen, who had lived in these forests for centuries and were recognized by the King of Thailand for protecting the Thai/Burma border, were not consulted. The Karen communities in Thung Yai continue to insist that they want to live according to their own cultural ways. Despite civil-society efforts to reform the rights of Indigenous Peoples in Thailand’s protected-area system, the state does not accept that Indigenous Peoples are protected by UNDRIP, and the situation for Indigenous Peoples has not changed in Thailand in the wake of UNDRIP. In 2013, the Thai government requested the designation of the Kaeng Krachen National Park as another World Heritage Site without consulting or involving the local Karen.[87]

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Uganda

The Kisoro-based United Organisation for Batwa Development in Uganda took its complaint to the Constitutional Court in an attempt to have Batwa’s ancestral land returned to them. The Batwa want both the Bwindi Impenetrable National Park and the Mgahinga Gorilla National Park—Uganda’s star tourist attractions—returned. The Ugandan government evicted the Batwa from their homeland in 1991 to create the two national parks without compensation—the Uganda Wildlife Authority originally earmarked 10 percent of revenues collected from the national parks for local affected communities, but this has not been paid.[88]