THE NEXUS BETWEEN LAND RIGHTS AND THE RIGHT TO SELF-DETERMINATION FOR THE INDIGENOUS PEOPLE OF ASSAM

INDIGENOUS PEOPLE OF ASSAM

Devapreeti Sharma

‘Self-determination’, as a legal concept and as a right, recognises the autonomy of communities and seeks to protect and promote their survival as well as welfare. It is also commonly associated with land rights.

Ordinarily, land rights remain in the domain of national jurisdictions; but for some time now, land rights have come to be incorporated in the sphere of international law particularly from the perspectives of indigenous people.

This is because indigenous people have a close relationship with the land they live on. This relationship entails some important cultural, political and economic dimensions; all of which culminate into their land rights under international law.

Cultural Dimension – for most indigenous groups, land “is a source of tribal legend and spiritual origin that provides special cultural, religious and emotional meanings”.[1] Their religions have elements of animism and totemism. This is a characteristic one would find across the globe.

In Assam, for instance, is the Mising tribe whose cultural practises comprises a lot of supernaturalism. They, believing themselves to be sons of the nature, worship the Sun (‘dony’) and the Moon (‘polo’). Their main festival, ‘Dobor Uie’ glorifies the nature most of all.[2]

Central to the Tiwas are the sacred groves called ‘Thaan’. These sacred groves consists of a variety of natural vegetation, preserved and worshipped.[3] Thus, for the indigenous groups of Assam too, the land is a storehouse of their myths and folklore. It is a part of their identity.

Economic Dimension – for most indigenous people, land is not a mere cultural symbol but also a source of subsistence. In fact, these indigenous groups succeed to survive economically by maintaining a respectful relationship with land. For example: the livelihood pattern of the Bodos is characterised by agriculture, primarily Ahu and Sali paddy.[4] 

They are also believed to be dexterous in constructing irrigation canals and embankments sustainably, solely with the help of the clan.[5] Thus, land plays a crucial role for the physical survival of most indigenous groups.

Political Dimension – Traditions of indigenous groups associated with land, more often than not, interact with political structures. As a matter of fact, the political aspect of indigenous land ownership constitutes “the reality and symbolism of self-determination.”[6]

Robbed of land ownership in their own homeland, the landless Misings under the leadership of Assam Miri Chatra Sanmilan (Assam Miri Students Conference) had struggled to obtain autonomy since 1993. Their efforts had culminated into the formation of the Mising Autonomous Council in 1995[7]. Similar have been the historical cases of the Rabha Hasong Autonomous Council, Tiwa Autonomous Council and Sonowal Kachari Autonomous Council.

Thus, there is a complex interplay of land, land usage, customary land rights with the governmental regimes and majoritarian land laws. Suffocating the land of the indigenous groups leads to suffocation of the group itself. This is the point where land and self-determination meets.

Self-determination, which, in the internal sense, is almost equivalent to self-governance, is often “seen as depending on some degree of control over land.”[8] The same has been reflected by the Human Rights Committee (HRC) in its concluding remarks on several country reports.[9] This may, therefore, be henceforth called the ‘territorial implication of self-determination’.

Having established the territorial implication of the right to self-determination for indigenous people, one needs to examine the international instruments which seek to materialize this implication.

It is pertinent to keep in mind that while the right to self-determination is secured to indigenous people under the aegis of human rights law through several international instruments, there is only one instrument which provides land rights to these indigenous people directly.

This is the ILO Convention No. 169 (1989).  This Convention has an entire chapter (i.e. Articles 13 – 19) dedicated to the land rights of indigenous people. Article 13 of the Convention highlights the relationship of land, territories and indigenous peoples, focussing particularly on the “collective aspects of this relationship”.

It is noteworthy that Para.2 of the said Article defines specifically the term “land” to include territories and total environment of the area.

Since ‘territory’ is normally understood in the context of State, the incorporation of this term in the Article seemed to legalise external self-determination by the indigenous people.

However, the definition provided in Para.2 has done away with this conflict and has harmonised, at least in black and white, the relationship of indigenous people with the nation in which they reside. 

Furthermore, Article 14 mandates that States recognise the rights of the indigenous people over the land they traditionally occupy, to safeguard these land particularly in the case of nomadic people and shifting cultivators, protect their right of ownership and possession of these lands within the established national legal system.

It is noteworthy that Article 14 seeks that States safeguard the rights of indigenous people “to use lands not exclusively occupied by them.” This would have had important ramifications for the indigenous groups of Assam because the districts where they live, for instance the BTC area, Karbi Anglong etc, have been infiltrated with other ethnic groups as well as foreigners.

However, the unfortunate factor is that India has not ratified this Convention, which is exclusively for the welfare of indigenous and tribal peoples. Therefore, the benefits of this Article cannot be secured for the indigenous groups of Assam. Consequently, they rely on other means to enjoy their right to self-determination.

India has ratified the International Covenant on Civil and Political Rights as well as International Covenant on Social, Economic and Cultural Rights, both of which provide the right to self-determination in Article 1 to “all peoples”. The jurisprudence of the HRC has already explained that “all peoples” really means indigenous peoples. Such jurisprudence takes effect, as it always has, from the Constitution of India, 1950.

Some tribal groups of Assam have availed the benefits of the provisions of the Sixth Schedule of the Constitution through the Autonomous District Councils (ADCs). There are three such ADCs the status of which has been recognised by the central and state government, and therefore enjoy the benefits of Sixth Schedule: Bodoland Territorial Council (BTC), Karbi Anglong Autonomous Council (KAAC) and Dima Hasao District Autonomous Council (DHDAC)[10].

The ADCs have powers over all tribal and non-tribal groups residing within its political boundaries. As a result, the indigenous peoples living within these boundaries are subject to the same insecurities which other indigenous peoples of Assam face, albeit a little less. Also, other tribal communities who have not achieved the status of ADC is in a comparatively disadvantageous position.

Hence, self-determination is a distant dream – for good or worse is however, left open to interpretation!

[1] M. Ferch, Indian Land Rights: An International Approach to Just Compensation, 2 TRANSNATIONAL LAW AND CONTEMPORARY PROBLEMS 309 (1992).

[2] Mayuri Barman and Banasree Phukan, Belief Practices and Their Impact on Sustainable Development in Assam, INDIA DELHI SCHOOL OF PROFESSIONAL STUDIES AND RESEARCH http://www.internationalseminar.org/XV_AIS/TS%205B/5.%20Dr.%20Mayuri%20Barman.pdf.

[3] Id.

[4] Kshireswar Borah, Socio Legal Study of the Indigenous Peoples of Assam with Special Reference to Autonomy Movements of Plains Tribes 19 (Jun. 21 2011) (thesis submitted for the Degree of Doctor of Philosophy, Department of Law, Gauhati University.

[5] T.C. Sarmah, The Indo-Mongoloids and their contributions to the culture and civilisation of India, 1(1) BULLETIN, TRIBAL RESEARCH INSTITUTE. 57 (1983).

[6] G. R. Schiveley, Negotiation and Native Title: Why Common Law Courts Are Not Proper Fora for Determining Native Land Title Issues, 33 VANDERBILT J. OF TRANSNATIONAL LAW. 431 (2000).

[7] BORAH, supra note 30, at 152.

[8] G. Nettheim, ‘Peoples’ and ‘Populations’ – Indigenous Peoples and the Rights of Peoples 121 in J. CRAWFORD (ED.), THE RIGHTS OF PEOPLES (1988).

[9] U.N. Doc. CCPR/C/79/Add.105. See also CCPR/C/79/Add.109, CCPR/A/55/40, CCPR/CO/74/SWE.

[10] ACTION AID, FUNCTIONING OF AUTONOMOUS COUNCILS IN SIXTH SCHEDULE AREAS OF NORTH EASTERN STATES 4 (2016).

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