Tool 3 – Challenges in the Identification and Recognition of Indigenous Land Rights

Preliminary research

It is important to undertake initial research – this may include:

• Consulting with government agencies, local, national and international organisations, NGOs, relevant Indigenous Peoples’ organisations and researchers
• Ascertain historical anthropological or archaeological studies of the area
• Seek the advice of other companies and organisations that already know the area

Legal context

You need to understand the legal context and consider:

• Whether or not Indigenous Peoples and their rights to land and resources are recognised in domestic law
• Complex legal issues must be addressed by a country-by-country basis
• Companies will need to seek expert legal and anthropological advice

Are there indigenous land rights not recognised in law?

There may be indigenous groups who have customary rights to land, which are not recognised law. Companies should consider a due diligence process:

• Review recent court decisions to fully understand the status of land ownership and claims. You may need to consult with local expert advice
• Meet with local community representatives to ask questions such as:

– Do the Indigenous Peoples currently inhabit the land?

– Is the land used by Indigenous Peoples to support traditional livelihoods?

– Is the land accessed or avoided for cultural, spiritual or religious purposes?

– Is there evidence that Indigenous Peoples inhabited or used the land in the past eg rock art?

– Are there Indigenous Peoples who claim to have rights to land in the area?

Knowledge base

It is important to develop a knowledge base as it is a powerful tool for helping understand the complex array of customary rights claims to land.

All information regarding traditional land ownership and customary use rights acquired during the previous steps must be recorded in a knowledge base, which is understandable to operational staff, Indigenous Peoples and decision-makers

Lack of government and/or legal recognition of indigenous land rights

Mining companies often operate in countries or jurisdictions where indigenous rights to land are not recognised in law, the existence of Indigenous Peoples may not be officially acknowledged and association with Indigenous Peoples is actively discouraged.

Companies must comply with relevant local and national laws. It is still good practice to apply the tools in this guide, even if there is a lack of legal framework or formal recognition of indigenous status; this can be achieved in a manner that avoids tension or being in breach of laws. For example:

• Framing meetings and agreements in the context of a broader community engagement
• Achieving agreement through consensus-building consultation and proactive engagement with impacted Indigenous Peoples
• Not framing or documenting the provision of benefits to impacted Indigenous People in a way that is perceived by government as granting rights that the host government will oppose

Competing, overlapping and adjoining claim to the same land

On occasions, more than one group may claim customary ownership over land or there may be disputes over boundaries:

• Do not immediately favour the group more co-operative or supportive of mining
• Do not favour the individuals who speak first or shout the loudest
• Adopt an inclusive approach
• Assume that claims from different groups are valid until shown otherwise
• Assist groups to resolve their disagreements – identify or fund a mediator
• Avoid becoming embroiled in conflicts – be a neutral arbiter
• When a pipeline or railway line etc crosses over the land of different traditional groups, ensure you are consistent and transparent in dealings with all impacted groups

Disconnection from land

This occurs when some sections of the indigenous population have become disconnected, both materially and culturally, from their traditional lands as a result of expropriation, discrimination, economic exploitation, migration and social and economic changes. Companies may find Indigenous groups living near a mine that are not considered as traditional owners of the land, but “local” nonetheless.

• If groups are likely to be affected by mining, or reliant on it for income – their support should be sort and they are entitled to be compensated fairly for any loss of access, use or amenity
• Listen to opinions on how they would like to be considered; particularly around impact management and benefit-sharing arrangements
• If the Indigenous Peoples have lived in the area for one or two generations, it is evidence of significant connection to the land and companies should act with this in mind
• Traditional owners who have been disconnected from their land, should also be engaged in matters – they still have a connection to the land