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Recognition of Customary Land Rights of the Tribals in India

BY: Madhulika Sahoo | Category: Issues | Submitted: 2011-09-03 21:03:35
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Article Summary: "The Government in recent time has failed to recognize the customary land rights of the tribals under the Forest Right Act and Indigenous People's Rights Act, which is long pending historical injustice to the tribals. The issue is not only restricted to India, it has widely experienced in other developing countries. The article .."

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The recognition of customary lands has been a major problem in tribal areas especially in most developing or underdeveloped countries. The situation is worst in African and Asian countries. Some of the account I have gathered from my fellow friends who are working in different parts of the countries on similar issues are no different to India. It is so that the tension between customary and statutory law that exists in most countries in Africa, Asia and Latin America, as well as the very low level of formal land registration, is another factor complicating the restitution/compensation process. Findings from Internal displacement monitoring system (IDMC) depict that in Africa only 1 per cent of land and property are registered under the cadastral system, mostly in urban South Africa. In the absence of reliable property registration and cadastre, displaced persons do not have the possibility of presenting ownership titles to prove their possession of land or property. In addition, informal ownership is usually based on customary law and linked to the right of use, and this right becomes limited in case of displacement and may favour those who have been using the land.

However, in countries like Indonesia, Sudan and the Philippines, natural resources and unoccupied land, including some land held under customary law, have been declared as state-owned and later sold into private ownership. Studies in Sudan and Colombia revealed that, the state used this process to grant concessions to oil and mining companies, which resulted in the forced displacement of the resident population. In countries such as Uganda and the DRC, exploitation of land titling program are common and mostly done by the political and economic elites, with the collaboration of certain traditional chiefs, have taken advantage to obtain private ownership over customarily owned land. In Uganda, land held under customary ownership was privatised during displacement, leaving IDPs without land to which to return. The scenario is no different in tribal pockets of India, where the village chiefs, district administrators, land mortgagers are bribed by the illegal mining companies to take advantage of customary lands of tribals who have no written records on their names.

A similar process has been repeatedly observed in tribal pockets of India especially in Southern and Western Odisha where the lands are rich and buried mines underneath the land which has been lately demanded by the foreign industrial investors, leading the entire indigenous population to a matter of conscious for mass displacement. Although the structured Forest Right Act has provided legitimate option for the tribes to opt for their land and forest rights. But the Government has remained unsuccessful in entitling the community forest right to the tribals. The issue might look simple but failure of sanctioning the community forest rights will lead to further tension.

In the country like Philippines where the Christians are benefiting from better access to information about land titling programmes, obtained titles over land owned under customary law by indigenous Lumads and Muslims. This led to widespread displacement of the latter groups. Now that the majority of lands in conflict-affected areas are titled, it is difficult for ancestral land claims to be adjudicated. Despite government attempts to recognise the right of indigenous people to hold lands under their ancestral claims or ownership through the adoption of an Indigenous People's Rights Act (IPRA), there has been little result. Findings by Anthropologist and Social scientist in India on property rights violations are a constant source of displacement in tribal areas, where customary law has been the rule until the government decided to use the land. Large development projects led by the state have provoked several waves of displacement. In the absence of alternative solutions, people displaced by those projects have often occupied others' land, thereby creating a new source of tension and displacement; this has been the case in numerous instances in northeast and other parts of tribal pockets of India.

In the context of a poorly functioning formal state system for land transfers and purchase, and with the breakdown of the customary system as the result of displacement, land titling initiatives can thus have a negative effect, in particular on vulnerable individuals, such as displaced people, women (particularly widows) and children. It is thus suggested that the Community Forest right in Forest Right Act should be granted in time before the land goes to the hand of the profit makers.

About Author / Additional Info:
I am a Researcher based in Odisha, did my education from University of East London. My area of interest includes displacement, tribal rights, refugee, forced migration, forest right etc.

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