I wanted to highlight a new report from the Open Society Justice Initiative on Strategic Litigation Impacts: Indigenous Peoples’ Land Rights. The report, written by Professor Jérémie Gilbert, draws comparative insights from practice in Kenya, Malaysia and Paraguay.
This study has relevance for the legal empowerment movement – both on strategies to expand the de jure recognition of indigenous land as well as calling attention to efforts for effective implementation. Gilbert’s study explores how effective use of strategic litigation is helping to safeguard indigenous land rights and thereby protect proxy rights, such as the right to life, education, health care and culture. It reveals that indigenous communities in all three focus countries are increasingly turning to the courts to take advantage of emerging legal protections, in concert with other forms of advocacy.
While these governments’ record of actually returning historic lands or providing collective redress is uniformly poor, this fresh, field-based research suggests that the use of litigation has spawned some positive results, including compensation to individual complainants and the creation of government institutions responsible for addressing indigenous concerns and implementation of judgments. Many community members interviewed for the study described how taking legal action became a central element of their struggle, whether or not it resulted in restitution. Moreover, a win in court prompted a sense of empowerment and rights awareness that allowed them to make better use of other advocacy tools to protect their rights.