detail - Rule of Law Programme Asia
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At the international conference, scholars and practitioners with an environmental law focus from the Asia-Pacific region (Australia, China, India, Indonesia, South Korea, the Philippines, Singapore, Taiwan and Thailand) presented their views on the national legal framework for traditional forms of land use. In subsequent panel discussions, the participants exchanged their experiences and best practices. The conference carried on seamlessly from our previous conferences on environmental protection. Students who had participated in the Moot Court were also invited to the event.
It was welcomed that many Asian nations have now developed a system for classifying areas to be protected. China, for example, distinguishes between "core areas", which must not be entered, so-called "buffer zones", which are accessible for scientific research purposes, and "experimental areas", which can be used by visitors as recreational areas. At the same time, it became apparent in the discussions that in many countries the protection of such classified areas practically reaches its limits. It is often observed that areas are populated or used for agricultural purposes contrary to regulations. As a countermeasure in order to enforce the protection of classified areas, the reorganization of the state land allocation in Thailand was mentioned. This is intended to ensure that poor sections of the population have enough land available for agriculture and that fallow arable land is turned towards those in need. As a result, it is to be hoped that illegal farming will decline and that forests will be preserved which are essential for the prevention of landslides. The criteria proposed for fair and sustainable land distribution included allocating land not to individuals, but to communities and educating them on how to keep land fertile.
On another positive note, comprehensive laws for the protection of indigenous peoples exist in many countries: In the Philippines, for example, they have the option of obtaining a land title in court, which formally grants the indigenous people ownership of the land they inhabit. One of the positive effects of such a land title is that the indigenous people are now able to plan the cultivation of their land on a long-term basis because there is no further threat of eviction. The land title also ensures that infrastructure projects that affect their land require their prior voluntary and informed consent.
However, it emerged from the discussions that gaps and contradictions in legislation still exist and that practical implementation sometimes leaves much to be desired. For example, laws restrict the use of land that has been granted to indigenous peoples: In many cases, indigenous people are forced to obtain official permits to hunt or fish. Conversely, a land title can also be used for extensive use of the land’s resources, such as the granting of mining rights. If such economic rights of use are granted, the actual objectives of the laws for the protection of natural resources and indigenous peoples are threatened to be undermined.
With regard to such challenges, the diversity of the legal situation in Asia with regard to the protection of indigenous peoples was once again demonstrated. In India, for example, the recognition of forest dwelling communities was accompanied by responsibility and authority for the sustainable use of the land they inhabit. However, even the sustainable use of resources may cause problems, for example granting indigenous peoples an adequate share of the economic value of resources extracted from their land. Currently, this is a pressing issue as to the revenues of bioprospecting. This term describes the process of discovering and commercially exploiting new products based on biological resources. At the same time, however, the process of bioprospecting was also perceived as an opportunity to protect indigenous knowledge about the conservation of natural resources. As a future field of research, it was also suggested to investigate how private actors - e.g. commercial enterprises active in the field of bioprospecting - could be involved in the protection of indigenous peoples. Last but not least, the economic exploitation and protection of indigenous peoples can go hand in hand, as was demonstrated by the installation of solar panels on indigenous land in Taiwan, whose profits also flow to the communities living there.
However, where there is no legally recognized protection of indigenous peoples, the potential of recognizing certain natural areas as World Heritage sites has been highlighted. Since, according to the principles of the pre-recognition process, environmental conservation plays as important a role as respect for human rights, it is to be hoped that this process will indirectly bring positive changes for the protection of the environment and indigenous peoples.
Where legal regulations exist, the conflict between procedural rules focused on written evidence and the predominantly orally handed-down history of indigenous peoples also revealed itself as an obstacle to the enforcement of the rights of indigenous peoples. In addition, since legal pluralism is not one of the compulsory components of legal education in Asia, judges may lack an understanding of the customs and traditions of indigenous peoples, especially in view of the large number of different tribes, which is essential for a legal assessment of the facts of the case - as presented by witnesses, for example. A need to integrate the legal framework and actual circumstances for the protection of indigenous peoples into the training of the judiciary was therefore identified.
In addition, the term "indigenous" was critically examined as a decisive prerequisite for the protection regime recognized in international law for population groups who live close to nature and earn their living through traditional activities such as hunting and fishing. In some countries, minorities are discriminated against on the basis of the protection of indigenous peoples, with the ethnic majority calling itself the “original” people. Thus, the protection of minorities and indigenous peoples always needs to take into account the context of the region concerned, including within a country. Under no circumstances must this concept be ideological ammunition for those who want to reorganize the world by the standards of "blood and soil".
The question of how an indigenous people is to be defined in the specific region also arises when different population groups claim the same land and thus a division of the indigenous population itself is revealed, for example in questions of religious affiliation. Against this background, the new "Bangsamoro Organic Law" in the Philippines was discussed. A positive example of conflict resolution between different population groups living close to nature was presented from Indonesia. Among other things, a profound understanding of the various conflicts and open communication between the groups themselves and with state institutions in order to be able to identify the needs of the various actors were emphasized as decisive for success. The Asian legal systems also face challenges from the fact that some indigenous population groups combine the demand for protection of their livelihood and culture with a claim to sovereignty.
Despite the different cultural and geographical conditions within Asia, the conference revealed once more that Asian nations often face the same or similar challenges. By exchanging national legal frameworks and their practical implementation, the conference enables the export of "best practices" within Asian nations. It also became apparent how important it is to take an interdisciplinary view of the challenges in view of the links between legal, political, economic and social aspects.
 André Béteille, The Idea of Indigenous People, in: Current Anthropology 39, no. 2 (April 1998): 187-192.