Cases examined by the Special Rapporteur (June 2009 – July 2010)
A/HRC/15/37/Add.1, 15 September 2010
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XXXII. United Republic of Tanzania: Alleged forced removal of pastoralists
421. In a letter dated 23 September 2009, the Special Rapporteur on the human rights and fundamental freedoms of indigenous peoples, James Anaya, called the attention of the Government of the United Republic of Tanzania to information and allegations received regarding the forced removal of Masaai pastoralists from Loliondo, Ngorongoro District, Arusha region. This communication followed an earlier letter dated 23 March 2009 in which the Special Rapporteur transmitted allegations and information received about a similar situation regarding the eviction of Masaai pastoralists in the Kilosa Disctrict, the contents of which were included in the Special Rapporteur’s 2009 Report to the Human Rights Council Report (A/HRC/12/34/Add.1, paras. 440-446). The Special Rapporteur notes that there is no record of a response from the Government of the United Republic of Tanzania to either of the 23 March 2009 or 23 September 2009 letters in the files of the Office of the High Commissioner for Human Rights at the time of writing this report.
422. On the basis of the information received concerning the Masaai pastoralists in the Ngorongoro and Kilosa districts, the Special Rapporteur offers observations with a series of recommendations. These observations, which are included below, were conveyed to the Government in a letter dated 12 April 2010, in an ongoing spirit of constructive dialogue and cooperation conducive to the promotion and protection of human rights.
Allegations received by the Special Rapporteur and transmitted to the Government on 23 September 2009
423. In his communication of 23 September 2009, the Special Rapporteur transmitted to the Government information received by him about the forced removal of Masaai villagers in Loliondo, Ngorongoro District, Arusha Region from their villages. The Special Rapporteur requested that the Government respond to the allegations contained in the communication in light of international standards.
424. According to information and allegations received:
a) Between 4 and 6 July 2009, the paramilitary police Field Force Unit of the United Republic of Tanzania, together with security forces from the United Arab Emirates enterprise Ortello Business Corporation began a forced eviction of Maasai pastoralists inhabiting several villages in Loliondo, Ngorongoro District, Arusha Region in northern Tanzania, including in Orelia, Kalkakamoo, Girgiri, Ololosokwan, Soitsambu, Arash, and Olerien-Magaiduru. The eviction order was written by the Executive Director’s Office, Ngorongoro District in a letter dated 20 May 2009 (Ref. No. NGOR/DC/M. 1/94).
b) Evictions are part of a larger land rights conflict between Maasai pastoralists and conservation tourism development initiatives that have been grazing lands utilized by Maasai pastoralists are increasingly threatened by the establishment of conservation areas and the subsequent issuance of hunting licenses to tourism enterprises.
Eviction of Maasai Pastoralists
c) The burning of Maasai homes, or bomas, and related forced evictions have continued. On 16 July 2009, two bomas were burnt in Oloirien, a sub-Village of Ololosokwan. During that same event, riot police used tear-gas against the inhabitants, property was lost and three people were injured. This incident occurred just one day after the Minister for Natural Resources and Tourism, Shamsa Mwangunga, released a statement stopping the operation of burning people’s homes.
d) Thus far, during the course of the evictions, more than two hundred bomas were completely burnt, as were the possessions and food supplies found within the bomas and in the nearby crop fields. The evictions impacted more than 20,000 pastoralists, many of whom have taken refuge in temporary bomas around Oljorooibort near the border between Arash and Maaloni villages. The evicted villagers were left homeless and without food, clothing, land, water, medical and other basic social needs. Over 50,000 head of cattle belonging to the villagers, and comprising their primary economic activity, were left without grazing land or water due to the burning of grazing land and exclusion from traditional grazing areas.
e) Violence was used against village inhabitants. Specifically, one woman was repeatedly raped by a police officer during the eviction process and four others who were pregnant suffered miscarriages, reportedly as a result of the violence which took place during the eviction. Men were chained, beaten, and humiliated in front of their families and fellow village residents. Some individuals, including 16 youth, were detained. In the chaos that ensued, many family members, including children, were separated from one another. At least three children remain missing. The Government has denied that any violence or rape resulted from the evictions and has accused both village residents and journalists of inventing facts related to the evictions.
f) Despite a sustained campaign on the part of villagers themselves requesting that the Government address the issues surrounding the evictions, and despite visits to Loliondo by several Government officials, including the Ngorongoro Member of Parliament, the Minister for Natural Resources and Tourism, and the District Security Committee, no official action has been taken to investigate the wrongdoing of security forces or to address the concerns of the community members.
g) Additionally, the Government has taken steps to suppress the efforts of nongovernmental organizations, journalists, and Maasai leaders and villagers to investigate and protect the rights of the Maasai villagers, both with regards to the recent evictions and with regards to the situation of Maasai pastoralists generally. This suppression has taken the form of threats of violence; repression of peaceful protest by women, youth, and elders; and the restriction of journalists’ and nongovernmental organizations’ entry into the area to investigate the situation.
h) Government representatives admit the burning of bomas, claiming that it was done to prevent residents from resettling in the villages from which they were evicted. The 20 May 2009 letter from the Executive’s Office ordering the evictions asserts that the reasons for evicting the pastoralists are environmental degradation from agriculture, unsustainable tree cutting and the establishment of permanent bomas within the hunting area. The letter also forbids farming activities from occurring within the hunting block.
i) In support of its position that the practices of pastoralists have resulted in environmental degradation, Government representatives point to the findings of two taskforces – one regional and one national-that were formed to investigate and address environmental concerns within the Loliondo Game Control Area. The findings of these taskforces, however, have not been made publicly available. Further, independent investigations reveal that the evicted Maasai villagers do not pose an environmental threat to the Loliondo Game Control Area; by contrast, the traditional pastoralist lifestyle of the Maasai preserves the environment and does not cause harm to the regions wildlife.
j) Although Government representatives claim that the evictions took place as a result of environmental concerns related to the conservation of the Loliondo Game Control Area, the circumstances surrounding the evictions indicate that the evictions were in fact part of a larger Government policy favouring the interests of private enterprises engaged in conservation tourism and wildlife hunting, principally the Ortello Business Corporation, over the rights of indigenous peoples, particularly the Maasai pastoralists. The Government carried out the evictions in order to pave the way for the passage of the Wildlife Conservation Act of 2009, and the conversion of the Loliondo Game Control Area into a game reserve, a move which would further restrict the land use and occupancy rights of Maasai pastoralists use and occupancy rights of Maasai pastoralists.
Maasai Land and Resource Rights
k) The Maasai have inhabited the affected villages since time immemorial and claim the area as land belonging to them, a position in line with the principles found in the Village Land Act of 1999. In addition, the burial sites of the current inhabitants’ ancestors are located within village land. The pastoralist lifestyle of the affected Maasai villagers depends on the ability of Maasai herders to access vast areas of grazing land for their cattle in the arid region of Loliondo, particularly in times of drought. Maasai people have a cultural and spiritual attachment to the land, resources, and wildlife found within their claimed territory and have lived since time immemorial in harmony with their natural surroundings.
l) Over the last several decades, Maasai people have lost vast amounts of their ancestral lands to the creation of national parks, including the Serengeti National Park, the Tarangire National Park, the Manyara National Park, and the Ngorongoro Conservation Area. Other evictions from land either in or near national parks have similarly taken place in other regions of Tanzania, for example as referred to in the communication of 23 March 2009 on the recent evictions of Maasai pastoralists in Kilosa District, Morogoro Region.
m) The Loliondo division, where all eight affected villages are found, is located within a region that is itself home to several national parks and conservation areas spanning both Tanzania and Kenya. The villages themselves are located within the Loliondo Game Control Area, a hunting area created in 1959. The Ngorongoro Conservation Area, also, created in 1959, is located nearby, as are the Serengeti National Park and the Maasai Mara Game Reserve in Kenya. The area is home to a diverse array of wildlife and serves as an important corridor for several wildlife migration routes.
The Ortello Business Corporation
n) In 1992, the Ngorongoro district council, on behalf of several villages located within Loliondo, entered into an agreement with Bregedier Mohamed Al Ali of the Royal Family from Abu Dhabi in Dubai, United Arab Emirates. Based on that contract, the Ortello Business Corporation (OBC) was formed as an enterprise owned and operated by a Royal Family from the United Arab Emirates. OBC was granted rights to hunt within a designated block of the Loliondo Game Control Area. The hunting block is located in an area that is settled and legally owned by pastoralist Maasai villages. Since 1992, OBC has been operating a hunting enterprise within the Loliondo Game Control Area. Over the last 17 years, Maasai villagers have been subject to ever-increasing restrictions on their rights to access the lands and resources traditionally used and occupied, particularly their right to graze and water their livestock within the Loliondo Game Control Area, the location of important water sources necessary to maintain their subsistence lifestyle. Notably, Maasai pastoralists face severe restrictions on grazing their herds of cattle within the Loliondo Game Control Area during peak hunting season, which lasts six months each year. Herders who ignore such restrictions risk violent conflict with hunters in the area as well as loss of livestock due to hunting activities.
o) Government representatives claim that the 1992 agreement was valid and legally entered into by the parties by mutual consent and understanding. However, that contract was signed without the direct involvement of the Maasai communities. Villagers were given little information regarding the terms of the agreements and were not afforded the opportunity to negotiate the terms of the agreement. Additionally, the parties to the contract have not fully complied with its terms.
p) Specifically, the contract does not contain any provisions related to land or the eviction of pastoralists from their villages. Moreover, the original 1992 contract calls for OBC to make payments of 3 million Tanzanian shillings to each villager; to bring primary development services to each village, including water, schools, roads, among other services; and to provide employment opportunities to Maasai villagers. OBC has not complied with the contractual terms related to compensation, provision of services, and employment; its license to use the Loliondo Game Control Area expires at the end of 2009 and will subsequently be considered for renewal.
q) OBC’s status within the legal framework of Tanzania and the extent to which the Government maintains oversight of OBC’s operation remains unclear. For example, the operations of the OBC have had negative environmental impacts without any intervention by the Government. Specifically, the construction and operation of an airport in the middle of wildlife corridors and birthing areas has caused air pollution and noise disturbance; the construction of permanent housing has occurred illegally within animal conservation areas; and water piracy has diminished the water resources within the animal reserve. OBC, unlike other private enterprises in Tanzania, also enjoys a close connection to the Government of Tanzania and its operations are guarded by the police Field Force Unit and other state organs. Independent investigators attempting to examine the situation of the evicted villagers were stopped and questioned by the Field Force Unit and then escorted away from the OBC company camp.
Summary of allegations received by the Special Rapporteur and transmitted to the Government on 23 March 2009
425. Although the letter dated 23 March 2009 was reflected in the Special Rapporteur’s 2009 report to the Human Rights Council (A/HRC/12/34/Add.1, paras. 440-446), for ease of reference and in order to properly contextualize the observations presented below, the allegations that were received by the Special Rapporteur and transmitted in that letter to the Government are summarized here.
426. According to the information received, the Government of Tanzania had initiated the forceful eviction of Parakuiyo Maasi, Wairtaq, Wasukuma and Barbaig people from several villages in the Kilosa District, Morogoro region, located in the south-eastern region of Tanzania. These pastoralist groups have reportedly lived in the area for over a hundred years and have maintained a traditionally nomadic lifestyle, subsisting by raising livestock According to sources, the forcible removal of the pastoralists from their lands and the seizure of their livestock have abruptly altered the lives and well-being of the pastoralists by leaving them without the very foundation of their survival. Allegedly, the Government had no apparent plan for carrying out the relocations. No alternative lands in which the pastoralists may continue their traditional livelihoods had been set aside and no compensation for the removals or confiscation of the livestock has been provided to the pastoralists. No clear explanation for why the removals are being carried out was offered.
427. Allegedly, at the time of the Special Rapporteur’s communication, at least 8,000 livestock had been apprehended by the Government. In addition, pastoralists were forced to pay a fine of 30,000—45,000 Tanzanian shillings (USD $30-45) per cow and 10,000 Tanzanian shillings (USD $10) per goat, sheep and donkey as a penalty for purported environmental degradation. Reportedly, when the pastoralists fail to pay the fines, the Government automatically confiscates the livestock and sells them; after paying all the fines, the pastoralists are again forced to pay a truck of $450,000 Tanzanian shillings (USD $45) to transport the livestock has negative effects on the health of the pastoralists, who traditionally rely heavily on milk, meat, fats and blood in their diet.
428. Reportedly, this eviction followed a previous eviction operation entitled the National Anti-Livestock Operation, which was carried out between May 2006 and May 2007. During the removal period, large numbers of Sukuma agro-pastoralists and Ilparakuiyo, Taturu and Barabaig pastoralists and their livestock were evicted from the Usangu Plains in Mbarali district, Mbeya region. These removals were purportedly carried out to prevent the environmental degradation of the Ihefu and Usangu Basin and the drying up of the Great Ruaha River. However, sources maintained that these environmental concerns were not caused by the activities of pastoralists, but rather by increased irrigated cultivation during the dry season by large farms in the area.
Observations of the Special Rapporteur
429. The Special Rapporteur notes with regret that to date there is no record of a response from the Government of the United Republic of Tanzania to either his communication of 23 March 2009 or his communication of 23 September 2009. Having cross-checked the information received on the situation of the pastoralists in the United Republic of Tanzania, the Special Rapporteur considers it sufficiently credible to indicate a pressing problem requiring the attention of the Government and urges the Government to take corrective measures as needed. In particular, the Special Rapporteur is concerned that the removals in the Kilosa and Ngorongoro districts represent part of a troubling pattern of evictions in Tanzania of pastoralist and hunter-gatherer groups from their traditional lands, without adequate recourse and reparations.
430. In a spirit of ongoing constructive dialogue and cooperation, the Special Rapporteur presents the following observations, which include a series of recommendations, in hopes that they assist the Government in addressing the situation of the pastoralists in the United Republic of Tanzania. These observations and recommendations were transmitted to the Government of the United Republic of Tanzania in a letter dated 12 April 2010.
The need for special protections for vulnerable indigenous groups
431. The groups that seem to be particularly affected by the Government policies leading to evictions are various nomadic and semi-nomadic pastoralist and hunter-gatherer groups that, according to credible information, depend on their traditional lands and surrounding natural resources for their daily livelihood and survival, including by raising livestock. The grievances of these groups, stemming from their distinct cultural identities and dependence on their traditional territories, can be identified as the types of problems faced by other indigenous peoples worldwide with regards to the effects of development and other projects within their traditional lands.
432. United Nations treaty bodies have recently expressed concern over the lack of special, differentiated recognition and protection of certain vulnerable groups within the United Republic of Tanzania. In 2009, the Human, Rights Committee noted “that the State party does not recognize the existence of indigenous peoples and minorities in its territory” and expressed regret about “the lack of information about certain vulnerable ethnic groups.” The Committee consequently recommended that the Government “as a matter of urgency, carry out a study regarding minorities and indigenous communities in the State party, and adopt specific legislation and special measures to protect, preserve and promote their cultural heritage and traditional way of life.”[99] Similarly, in 2007, the Committee on the Elimination of All Forms of Racial Discrimination pointed out “the lack of information on certain vulnerable ethnic groups, notably nomadic and semi-nomadic populations, inter alia the Barbaig, Maasai and Hadzabe, on the difficulties they allegedly face due to their specific way of life and on special measures taken to guarantee the enjoyment of their human rights.”[100]
433. Like Tanzania, several governments of African states have contested the applicability of the indigenous rubric to refer to particular groups within their respective post-colonials states, at times arguing that all Africans are indigenous or aboriginal as compared to European settlers and their successors. This issue was addressed by the Working Group of Experts on Indigenous Populations/Communities of the African Commission on Human and Peoples’ Rights, which observed, “if the concept of indigenous is exclusively linked with a colonial situation, it leaves us without a suitable concept of analyzing internal structural relationships of inequality that have persisted after liberation from colonial dominance.”[101] The African Commission determined that use of the term indigenous peoples “should put less emphasis on the early definitions focusing on aboriginality… [and instead] on the more recent approaches focusing on self-definition as indigenous and distinctly different from other groups within a state on a special attachment to and use of their traditional land whereby their ancestral land and territory has a fundamental importance for their collective physical and cultural survival as peoples; on an experience of subjugation, marginalization, dispossession, exclusion or discrimination because these peoples have different cultures, ways of life or modes of production than the national hegemonic and dominant model.”[102]
434. The Special Rapporteur observes that the groups affected by past evictions in the country fall properly within the scope of the international concern for indigenous peoples as it has developed throughout the United Nations and regional human rights systems and in connection with the mandate of the Special Rapporteur on indigenous peoples. In adopting the United Nations Declaration on the Rights of Indigenous Peoples in 2007, State members of the United Nations, including the United Republic of Tanzania, manifested their support for the Declaration’s call for affirmative and concerted measures to address the disadvantaged conditions of indigenous peoples in accordance with the human rights principles elaborated upon in that instrument.
435. The specific relevance of the Declaration, as evident by its terms, and of the various United Nations program and mechanisms concerning indigenous peoples, including, the mandate of the Special Rapporteur on indigenous peoples, applies to those groups indigenous to a territory that are in non-dominant positions and that have suffered and continue to suffer threats to their distinct identities and basic human rights in ways not felt by dominant sectors of society. Accordingly, the Special Rapporteur considers that the special protections called for by the Declaration for vulnerable indigenous groups are applicable to those indigenous pastoralist and hunter-gatherer groups that have suffered past evictions, as well as those groups who continue to be vulnerable to similar removals and other severe restrictions on their traditional land use practices.
Duty to recognize and protect indigenous rights in lands and natural resources
436. The Special Rapporteur understands that, under Tanzanian law, individuals and groups have certain rights to occupy lands based on customary land tenure.[103] Despite this, it appears as though these guarantees have been inadequate to protect indigenous pastoralist and hunter-gather groups from removals from their traditional lands. It is apparent that these groups continue to experience a lack of legal certainty over the lands they have occupied and over the natural resources they have sought to access for traditional substance activities.
437. In this connection, it bears emphasizing that the United Nations Declaration on the Rights of Indigenous Peoples states the following:
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.
438. Article 27 of the United Nations Declaration further-affirms that States have the affirmative duty to establish a process by which indigenous land rights can be recognized, and that this process should be carried out in conjunction with the indigenous peoples concerned:
States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.
439. Similarly, the African Commission on Human and People Rights has affirmed that rights to lands and natural resources based on traditional tenure or effective possession are protected by article 14 of the African Charter on Human and Peoples’ Rights. In a recent decision concerning the Endorois indigenous people in Kenya (dealing with the situation of an indigenous people forcibly removed to make way for a national reserve and tourist facilities), the African Commission affirmed that traditional indigenous tenure constitutes property, and that State parties to the Charter are bound under article 14 not only to respect but also to affirmatively protect that property.[104] Consequently, the African Commission found that the State “has a duty to recognise theright to property of members of the Endorois community, within the framework of acommunal property system, and establish the mechanisms necessary to give domestic legal effect to such right recognised in the Charter and international law.”[105]
440. In both cases that the Special Rapporteur has brought to the attention of the Government of Tanzania, the pastoralist groups involved assert that they traditionally inhabit the lands from which they were removed, yet evidently, they did not have an effective opportunity to secure potential rights prior to the establishment of conservation or wildlife regimes over those same lands, and prior to their eventual evictions from those lands. Despite some recognition in existing laws and policies of rights to occupy lands in accordance with customary land tenure patterns, it does not appear that these existing standards provide adequate protection for indigenous pastoralist and hunter-gatherer groups. Thus, the Special Rapporteur considers that, in general, the State has not complied with its duty to affirmatively protect the rights of these groups to their traditional lands, where such rights exist. This failure has left certain groups in a constant state of vulnerability and threat of violation of their land rights, especially in light of Government laws and policies that expressly restrict-the traditional livelihood practices of pastoralist groups, and push for stricter conservation policies or other goals purportedly inconsistent with the pastoralist and hunter-gather lifestyle.
441. For example, it has come to the attention of the Special Rapporteur that the Wildlife Conservation Act 2009, which replaced the Wildlife Conservation Act of 1974, will further threaten the livelihoods of pastoralists and other groups all over Tanzania who depend upon the access to natural resources. The 2009 Act provides that the President may, after consultation with relevant local government authorities, and by order in the gazette, declare any part of Tanzania a game reserve.[106] Moreover, the Act does not contain an exemption relating to permit requirements for either people whose places of original residence are within the game reserves or those who were born within the reserve.
442. Instead, it imposes large fines and imprisonment of not less than one year for entry by any person into a game reserve, without prior permission of an authority.[107] The Act also has a specific provision that prohibits the grazing of livestock in game reserves.[108] The punishment for violating this prohibition is a large fine, or imprisonment for a term of not less than two but not more than five years, or both.[109]
Potential limitations on the property rights of groups
443. Like other property interests, the property rights of indigenous peoples based on their traditional land and resource tenure may be subject to limitations for legitimate, non-discriminatory public purposes in accordance with law. However, as emphasized by the African Commission in the Endorois case, a much higher threshold than ordinarily required must be met, and in the most compelling of circumstance, for justifying significant limitations on the rights to lands and resources of indigenous peoples, where those rights are “associated with the most important and fundamental human rights, including the right to life, food, the right to self-determination, to shelter, and the right to exist as a people.”[110]
444. The Special Rapporteur understands that the Government of Tanzania has made specific reference to environmental reasons in order to justify the forced removal of the indigenous pastoralists, including protection of the wildlife through the creation of conservation zones and national parks over traditional lands of pastoralist groups, and prevention of environmental degradation from agriculture, unsustainable tree cutting, and other detrimental activities allegedly due to the pastoralists.
445. Nevertheless, the Special Rapporteur has received information that environmental harm of the nature stated has not necessarily been caused by the pastoralists’ activities. For example, in the case of the eviction in the Mbeya region, it has been alleged that the degradation of the Ihefu and Usangu Basin and the drying up of the Great Ruaha River, reasons cited for the evictions, would not be caused by the activities of pastoralists, but rather are the result of increased irrigated cultivation, in particular the increase of rice and other crop cultivation during the dry season by large farms in the area. Similarly, regarding the eviction of the Maasai ostensibly for preservation of the Loliondo Game Control Area, the Government has pointed to the finding of’ two taskforces formed to investigate and address environmental concerns as justification for the removals, though these have not been made public. According to information received, separate independent investigations have revealed that the land use practices of the evicted Maasai villagers do not pose an environmental threat. Furthermore, the operations of the Ortello Business Corporation, an enterprise owned by a Royal Family from the United Arab Emirates, which was granted hunting rights in 1992 over the Loliondo Game Control Area, have had negative environmental impacts without any intervention by the Government. Specifically, the construction and operation of an airport in the middle of wildlife corridors and birthing areas has caused air pollution and noise disturbance; the construction of permanent housing has occurred within animal conservation areas; and water piracy has diminished waters resources within the animal reserve.
446. It has also been reported to the Special Rapporteur that the Government of Tanzania has claimed that the evictions were part of a larger effort to minimize land rights conflict between pastoralists and farmers or private enterprises, which in some cases have turned violent. However, reports indicate that the Government itself has contributed to these conflicts by parceling and leasing large portions of land traditionally used by the pastoralist groups to private investors, and restricting pastoralist use of those lands, causing the increasing tensions. For example, as noted in the communication dated 23 September 2009, over the last 17 years Maasai villagers have been subject to ever-increasing restrictions on their rights to access the lands and resources they traditionally used and occupied, particularly the right to graze and water their livestock within the Loliondo Game Control Area, especially during peak hunting season, which lasts six months a year. Herders who ignore such restrictions risk violent conflict with hunters as well as a loss of livestock due to hunting activities.
447. Thus, at this point, there remain serious questions about a sufficient environmental or other justification to severely limit the property rights they may be shown to have, to restrict pastoralist activities in certain areas, or especially to evict them from their traditional lands. In this connection, the United Nations Human Rights Committee observed “with concern reports that the traditional way of life of indigenous communities has been negatively affected by the establishment of game reserves and other projects” and consequently, recommended that the United Republic of Tanzania “consult indigenous communities before establishing game reserves, granting licenses for hunting, or other projects on ‘ancestral’ or disputed lands.”[111]
448. In particular, because the relocation of indigenous peoples who have strong cultural and material connections to the lands from which they are removed is understood to implicate threats to a range of human rights, the establishment of environmental or wildlife conservation areas should not result in the relocation of indigenous peoples. However, if relocation is considered an option, that option should only be realized with adequate mitigation measures and with the consent of the indigenous people being resettled. In this regard, the Declaration on the Rights of Indigenous Peoples states that “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 of return” (article. 10).
Duty of the State to provide redress and reparations for violations
449. If, after careful analysis bearing in mind the aforementioned international and regional human right norms, restriction of the rights to land and resources of indigenous pastoralist groups is considered an option, these restrictions should only take place with adequate mitigation measures and, in the case of any removals, with the agreement of the affected groups within a participatory, consensus-building process, and the opportunity to return to their traditional lands. In the cases that were brought to the attention of the Government of the United Republic of Tanzania by the Special Rapporteur, it was alleged that no alternative lands in which the pastoralists may continue their traditional livelihoods were set aside and no compensation for the removals and the land loss has been provided.
450. Moreover, a number of reports indicate that in the course of the forced removal, indigenous groups have suffered the theft and confiscation of large numbers of livestock with no compensation, the imposition of unjustified fines for keeping livestock, and the death of large numbers of livestock. Furthermore, evicted groups faced a situation of extreme vulnerability as a result of the loss of their traditional habitats, and these evictions could have a devastating impact on their culture and traditional lifestyle.
451. In this connection, article 28 of the United Nations Declaration affirms the right of indigenous peoples “to redress, which 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” and “[u]nless 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.”
452. Furthermore, it is concerning that affected indigenous groups have had no administrative or legal recourse through which to complain to receive redress and reparations for evictions or for other significant restrictions on their rights to land, such as prohibition of pastoralist activities in key areas. The Special Rapporteur notes that the lack of effective mechanisms for redress and reparations, combined with an apparent prioritization of the interests of private investors and farmers over the traditional livelihoods of pastoralist groups, appears to be fomenting feelings of significant discrimination and mistreatment by the Government against these vulnerable groups. In this regard, the Declaration states that:
Article 40
Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.
453. Related to the above concerns, the Declaration also states that “Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources” and that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources” (article 32). Similarly, the African Commission has stated that the right to development under article 22 of the African Charter requires States to effectively involve and benefit indigenous peoples in the development process, including in the establishment of conservation areas. In its Endorois decision, the Commission stated that Kenya’s failure to consult with and provide the Endorois with adequate compensation, benefits and suitable land for traditional subsistence activities, violated their right to development.[112]
454. In this connection, the Special Rapporteur understands that certain legislation within the country provides for villages to participate in economic development initiatives. Specifically, the Wildlife Conservation Act, 2009 allows for villages’ benefit sharing in the wildlife management areas for “promoting wildlife conservation, enhancing economic development and poverty reduction.”[113] Nevertheless, the Special Rapporteur observes that, in general the Government could do much more to develop plans in environmental and wildlife conservation zones in ways that enable affected groups to become active participants and direct beneficiaries of natural conservation and economic development of these areas.
Recommendation
455. In light of the foregoing the Special Rapporteur makes the following recommendations to the Government of Tanzania:
455.1. Cease and desist from any further removals of indigenous pastoralist groups from their traditional lands, including within the Ngorongoro Conservation Area, unless in consultation with affected groups and pursuant to their free, prior, and informed consent.
455.2. Establish an effective mechanism to identify and protect indigenous rights to land in accordance with their customary laws and land tenure practices, and in consultation with affected indigenous pastoralist and hunter-gatherer groups. As part of this process, the Government should enact reforms to existing laws and policies, including the Wildlife Conservation Act of 2009, as necessary in order to ensure adequate recognition and protection of the rights to land and resources of pastoralist groups within conservation and wildlife protection areas.
455.3. Establish an adequate mechanism under which affected groups can apply to receive redress and reparations—as necessary in accordance with international standards and giving due consideration to the customs and traditions of indigenous pastoralist and hunter-gather groups—for any restrictions to their rights to lands and resources, including evictions carried out. Reparations should include comparable alternative lands and monetary compensation for lands, resources and other, property, including livestock, which has been lost, and also provide the option of the return of groups to their traditional lands, at a future date, if they so desire, in accordance with aforementioned international standards.
455.4. Carry out independent and impartial investigations, or publically release the findings of any investigations already carried out, into the forced removals of indigenous groups of 2009 in the Kilosa District and the Ngorongoro District. The investigation should look into alleged abuses committed by agents against pastoralist groups during the course of the resettlement process and afterwards, and ensure that sanctions are imposed against those agents responsible for any violations against individuals and families.
455.5. Consider a long-term vision for development of the indigenous pastoralist groups that enables them to become active participants and direct beneficiaries of natural conservation and economic development, including through tourist potential of wildlife and other conservation areas.
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NOTES
[99] Concluding Observations of the Human Rights Committee, United Republic of Tanzania, CCPR/C/TZA/CO/4, para. 26 (6 August 2009).
[100] Concluding observations of the Committee on the Elimination of Racial Discrimination, United Republic. of Tanzania, CERD/C/TZA/CO/16, para. 16 (27 March 2007).
[101] See, African Commission on Human and Peoples Rights (ACHPR), Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, Submitted in accordance with the “Resolution on the Rights of Indigenous Populations/Communities in Africa”, Adopted by The African Commission on Human and Peoples’ Rights at its 28th ordinary session (2005), p. 92.
[102] ACHPR Report, supra, pp. 92-3.
[103] See e.g.,Lands Act of 1999, Section 1(k)(3).
[104] African Commission On Human and Peoples’ Rights, 276/2003 – Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya (2010) [Hereinafer “ACHPR Endorois Case”], para. 191.
[105] Ibid., para. 196.
[106] Wildlife Conservation Act 2009, Section 14(1).
[107] Ibid., Sections 15(1) and (2).
[108] Ibid., Section 18(2).
[109] Ibid., Section 18(4)
[110] ACHPR Endorois Case, supra, para. 212, citing Nazila Ghanea and Alexandra Xanthaki (2005) (eds). “Indigenous Peoples’ Right to Land and Natural Resources” in Erica-Irene Daes, Minorities, Peoples and Self-Determination, Martinus Nijhoff Publishers.
[111] Concluding Observations of the Human Rights Committee, United Republic of Tanzania, CCPR/C/TZN/CO/4,para 26 (6 August 2009).
[112] ACHPR Endorois Case, supra, para. 298.
[113] Wildlife Conservation Act, 2001, Section 31 (2).