by them, but to which they have traditionally
had access for their subsistence and traditional
activities. Particular attention shall be paid to
the situation of nomadic peoples and shifting
cultivators in this respect.”
United Nations Declaration on the Rights
of Indigenous Peoples (UNDRIP)
UNDRIP is a comprehensive list of rights of
indigenous peoples. Article 25 recognizes the
right of indigenous peoples “to maintain and
strengthen their distinctive spiritual relationship
with their traditionally owned or otherwise
occupied and used lands, territories, waters and
coastal seas and other resources and to uphold
their responsibilities to future generations in this
regard.”
Article 26 emphasizes indigenous peoples’ right to
“own, use, develop and control” lands, territories
and resources.
Article 27 obliges the state to “recognize and
adjudicate the rights of indigenous peoples”
pertaining to their lands, territories and resources
(again, including those that are traditionally and
otherwise owned or occupied).
Article 28 addresses the issue of lands, territories
and lands taken, used or damaged without the
free, prior and informed consent of indigenous
peoples.
Article 29 addresses the environmental,
conservational and health aspects of indigenous
peoples’ land rights.
The duty of states to obtain, or in some cases
seek to obtain, indigenous peoples’ free prior
and informed consent (FPIC) is clearly expressed
in the UNDRIP, especially in relation to indigenous
76
peoples’ interests over lands, territories and
resources (e.g., Articles 10, 19 and 32(2).) The
UN Committee on the Elimination of Racial
Discrimination’s General Recommendation XXIII
(1997) (GRXXIII) recognizes the fundamental
nature of indigenous peoples’ rights to
maintain and develop the full spectrum of their
relationships to their traditional lands, territories
and resources.
Durban Accord
Indigenous issues were addressed in the other
major outcomes of the Congress, notably in
Outcome 5 of the Durban Action Plan and in The
Durban Accords. Outcome 5 of the Durban Action
Plan states that “The rights of indigenous peoples,
mobile peoples and local communities [should be]
recognized and guaranteed in relation to natural
resources and biodiversity conservation” (IUCN,
2005:224). The Durban Accord recognizes the
successes of indigenous and local communities in
conserving biodiversity, as well as “their efforts to
make protected areas places of natural, cultural
and spiritual convergence” (IUCN, 2005: 221). A
“Cause for Concern” is that “many places which
have been conserved over the ages by local
communities, mobile and indigenous peoples are
not given recognition, protection and support”
(Ibid). It urges “commitment to involve local
communities, indigenous and mobile peoples in
the creation, proclamation and management of
protected areas” (IUCN, 2005:222), as well as
more effective benefit sharing and support for
CCAs.
The rights over lands and natural resources are
enshrined by these international laws, each of
which has been ratified by Nepal. The government
is duty bound to incorporate these international
laws in its national laws and implement them
effectively.
Asian NGO Coalition for Agrarian Reform and Rural Development (ANGOC)
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