by Shawlin Hussain
Photo: Lake Naivasha, Kenya (credit: ILP)
Why is land important to Indigenous Peoples?
Despite making up only 6.2% of the world’s population, Indigenous Peoples either customarily or formally govern approximately 25% of the world’s land. Their stewardship and connection to land is distinctively profound; for Indigenous Peoples, land has numerous cultural, political, social, economic and spiritual dimensions and duties.
Notably for the Maasai Peoples, land is integral to their livelihoods, survival and cultural/ religious identity. For example, land is a defining feature of their spirituality as in the case of Oldoinyo Lengai (God Mountain), Loormalasin, and Lemakarot - all sacred sites in the Ngorongoro District, Tanzania. In these areas, the Maasai worship Gods and practise their spirituality. Moreover, their practices compel every member to preserve nature. Notably, a Maasai person will never cut a big tree from the trunk, and those who violate this norm are given a punishment enforced by the Maasai elders. Additionally, the Maasai only utilise tree branches (not the entire tree) to build houses, make fire for cooking and heating, build fences for their homesteads and other requirements. This ensures that the tree survives and they can harvest from it for many years. Through these customs, their land is protected and its preservation is enforced by community standards and moral authority.
However, historical and ongoing infringements on Indigenous Peoples land have resulted in dispossession, cultural erosion, and economic deprivation for these communities globally. This blog post will explore the impact of these injustices, focusing primarily on the plight of the Kenyan Maasai as a core example.
How is Indigenous Peoples’ relationship with their land protected?
Across the world, both national and international organisations are recognising the importance of Indigenous Peoples’ relationship to land by recognising their land rights - rights that acknowledge their connections to their ancestrally owned lands and ensure Indigenous Peoples’ right to own, control and use their communal lands, territories and resources. Protection of these rights is integral as they allow these communities to preserve and enjoy their ancestral practices and protect them against external influences.
What international legal instruments protect Indigenous Land Rights?
The two leading international legal instruments that protect Indigenous Land Rights are The Indigenous and Tribal Peoples Convention 1989 and the United Nations Declaration on the Rights of Indigenous Peoples.
The Indigenous and Tribal Peoples Convention 1989 (ILO Convention 169)
The International Labor Organization Convention (ILO) No.169 is a legally binding instrument open to ratification that provides for the rights of Indigenous and Tribal Peoples. The Convention recognises and protects tribal peoples’ land ownership rights and sets a series of minimum UN standards regarding consultation and consent.
Article 14 of the Convention states that:
1. The rights of ownership and possession of the peoples concerned over the
lands which they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditional activities. Attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
2. Governments shall take steps as necessary to identify the lands which the
peoples concerned traditionally occupy, and to guarantee effective
protection of their rights of ownership and possession.
3. Adequate procedures shall be established within the national legal system to
resolve land claims by the peoples concerned.
Article 15 states that:
1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
However, as of 2024, No.169 has only been ratified by 24 nations. A large majority of Indigenous Peoples globally are therefore not guaranteed the protection afforded by the Convention as the countries in which they live have likely not yet ratified this instrument. For example, neither Kenya nor Tanzania (where the Maasai are based) have ratified the Convention, weakening the protection of their land rights.
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) 2007
UNDRIP is a human rights instrument detailing the rights of Indigenous Peoples around the world. It was adopted in September 2007 by a majority of 144 states in favour, 4 votes against and 11 abstentions.
Although the Declaration is not being legally binding, it has been important in highlighting that Indigenous Peoples need special protection within their national legal frameworks and represents the development of international legal norms aimed at defending Indigenous rights. For example, it has been drawn upon by human rights bodies around the world when creating binding legal precedent (international judgments) recognising Indigenous Peoples’ Rights. The Declaration contains 46 articles describing a variety of collective and individual rights. Moreover, it identifies states and governments as responsible for protecting and upholding these rights.
Some of the articles specifically addressing Indigenous Land Rights within UNDRIP are:
Article 10
Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible with the option to return.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.
Article 28
1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.
Despite the existence of legal instruments that protect indigenous land rights, the reality is that these instruments are often not implemented or respected, resulting in ongoing infringements on Indigenous Land Rights including forced relocation. Moreover, these instruments have not been able to rectify the impact of historical colonial injustices that Indigenous communities have endured for centuries.
What Historical Injustices have impacted Indigenous Peoples?
Many of the injustices endured by Indigenous Peoples are a direct result of colonialism. Colonialism is the practice of attaining full or partial political control over another country, occupying it with settlers, and exploiting it economically. This historical period involved devastating violations on indigenous rights, with many implications that appear to this day.
The arrival of the colonialists in Africa in the late 1800s and early 1900s introduced new and devastating century-long governance and economic systems which were not aligned with Indigenous systems. The Maasai were among many Indigenous communities that suffered as a result.
When British colonialists arrived in Kenya, the Maasai were at the height of their military and economic power. They had refined pastoralism, and successfully kept other groups off their territories while controlling large tracts of lands and maximising the size of their herds. However, in 1904 the British government entered into an agreement with the Maasai to create room for European settlers. Thus, the Maasai promised to relocate to two created reserves (Laikipia Reserve in the north and the Southern Reserve in the south) on several conditions. For example, an easement to a road connecting the two reserves was to be built, the Maasai should be granted at least five acres of land to conduct their traditional ceremonies, and their right to land in the new reserves should be vested to them in perpetuity.
The agreement resulted in the reduction of the Maasai's territory by 60% and was littered with implementation issues. For instance, the government did not provide an easement for a road connecting the two reserves. Moreover, it leased the land that was meant to be reserved for Maasai traditional ceremonies. The influx of settlers continued, however, which created demand for new settlements. Thus in 1911, the British entered into another agreement with the Maasai to control them and to allow more settlers to appropriate the Maasai’s land to establish homesteads and ranches. The administrators induced the Maasai representatives to sign this particular agreement using threats of violence on the unwilling signatories, and thus the infringements on the Maasai’s rights and land continued. As a result of this new agreement, the ‘northern’ Maasai were relocated again, at gunpoint, from Laikipia to an extended Southern Maasai Reserve. Over 20,000 people and at least 2.5 million livestock were moved between 1911 and 1913. Moreover, the southern reserve was inferior to Laikipia, in particular because livestock and humans were killed by new diseases to which they had no immunity.
The injustice of British colonialism is still felt today. When the British left Kenya, the Maasai demanded that their original lands were returned to them. Yet, no part of the estimated six million hectares of dispossessed land was returned. Instead, the post-independence Kenyan government continued to uphold colonial legislations on land and further enacted more legislation that created individual land titles and the subdivision of the land into parcels that could not support the Maasai’s pastoralist lifestyle. This ushered in a rapid sell-off of Maasai land and further appropriation. This appropriation and annexation have continued through multiple Kenyan regimes, in violation of international human rights standards. Thus, the rights of the Maasai to own and control their lands have been continually infringed upon.
What has been the Impact of Historical Injustices on Indigenous Peoples?
Despite the end of direct colonial rule in various parts of the world, Indigenous Peoples continue to experience challenges to the full enjoyment of their rights. These challenges are often directly linked to the legacy of colonialism.
Key challenges postcolonial indigenous communities face include:
Land Annexation and Dispossession: Indigenous Peoples have continued to experience land dispossession and annexation in violation of international human rights law Land disputes continue to complicate the livelihoods of Maasai in particular, whose territory continues to be appropriated and sold to private developers. This practice has resulted in a loss of an estimated 1 million acres of Maasai land between 1998 and 2010, an issue which continues to this day. In particular, Indigenous Peoples continue to experience displacement because of colonial approaches to conservation. European colonialists developed a conservation model known as fortress conservation, which is based on the belief that biodiversity protection is best achieved by creating protected areas where ecosystems function in isolation from human activities. However, in many instances, land selected for conservation is already ancestrally owned and inhabited by Indigenous Peoples. The result has been that many Indigenous communities have been evicted from their ancestral lands, which has caused an increase in poverty and a loss of access to both resources and the lands with which they are spiritually connected. For example, in Kenya, the Maasai lost large areas of land to Amboseli National Park and the Maasai Mara National Reserve. This is in spite of international rulings and agreements that Indigenous Peoples are the best guardians of biodiversity.
Poverty and Marginalisation: Indigenous Peoples experience immense poverty and socio-economic deprivation due to the land dispossession and cultural disruption they endured under colonial rule. For example, the concept of private ownership (which was introduced to the Maasai under colonialism) has resulted in large economic disparities amongst the Maasai whose land has been divided and sold off. Moreover, the loss of land has resulted in less land being available for cattle herding, reduced the number of cows per household, and consequently reduced food production. It must also be noted that the Maasai have a lack of adequate health facilities and schools in their communities, and poor access to health services in urban settings partly due to language barriers.
Cultural disruption: Indigenous Peoples also continue to experience cultural deterioration, a legacy left by colonial rule. For example, as a result of the reduced food production capacity caused by land dispossession through forced relocation, the Maasai have grown dependent on food produced in other areas such as maize, rice, potatoes and cabbage. The members of the Maasai who live near crop farmers have had to engage in cultivation as their primary mode of subsistence as for many of them, their plot sizes are not large enough to accommodate livestock. This is traditionally frowned upon in Maasai culture, who believe that crop farming is a crime against nature as once the land is cultivated, it is no longer suitable for grazing.
Health and Indigenous Life Expectancy Gap: Indigenous peoples’ health status is affected by their living conditions, income levels, employment rates, access to safe water, sanitation, health services and food availability. The problem is compounded by structural barriers in accessing health care, which include geographical isolation and poverty. This results in the community being unable to have the means to pay the high cost for transport or treatment. Many health systems also do not reflect the social and cultural practices and beliefs of indigenous peoples. The lack of healthcare has severely affected life expectancy, which is one of the key indicators of Human Development Index (HDI). Available data from different studies show a remarkable indigenous life expectancy gap compared to non-indigenous populations living within the same state. As for mortality rates, data from studies show that in provinces where indigenous peoples are in higher concentration, the mortality rates are correspondingly higher.
Lack of Legal and Political Recognition: Despite the growing recognition of their rights in the international legal landscape, many Indigenous Peoples continue to struggle to have their rights recognised within national legal and political systems. For example, the Maasai’s increased calls to have their land rights recognised have consistently been ignored by the Kenyan government, who assert that the lands in question are national interests, meaning every citizen has a right to own and enjoy that land. This demonstrates the lack of recognition for the Maasai’s legal rights.
Resource Exploitation: Indigenous Peoples’ lands often contain rich natural resources, making them targets for exploitation which threaten indigenous land rights. The Maasai in Tanzania, for example, have been fighting against corporations that have entered Maasai lands to mine rubies and tanzanite.
Conclusion
Despite the end of direct colonial rule in Kenya and other parts of the world, the Maasai and other Indigenous communities continue to suffer from the impacts of colonialism, facing challenges such as land dispossession, poverty, an Indigenous life expectancy gap, resource exploitation and legal and political marginalisation. It is for this reason that international legal standards must be enforced and respected, to prevent further harm to Indigenous Peoples and to allow them to preserve and enjoy their ancestral lands and practices. Moreover, the voices of Indigenous Peoples globally must be respected, not least due to the crucial role they have and should be playing in protecting the earth’s ecosystems for the future.
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