Strategic Litigation Impacts: Indigenous Peoples’ Land Rights

Abstract

The report Strategic Litigation Impacts: Indigenous Peoples’ Land Rights draws comparative insights from practice in Kenya, Malaysia and Paraguay. The report is the third in the Justice Initiative’s five-part series of qualitative studies exploring the impacts of strategic litigation in various human rights areas around the world. The inquiry seeks a complex understanding of what distinguishes strategic litigation from other social-change agents by engaging hundreds of activists, litigators, complainants and scholars in collectively identifying effective practices and innovative uses of this vital tool.

The study explores how effective use of strategic litigation is helping to safeguard one of the globe’s most important resources – land – 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 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.

Keywords: litigation, indigenous peoples, land rights