Territory is often conceived by Indigenous Peoples as a critical source of identity. Through it, they display and perform practices and traditions that ensure their cultural and physical survival. For instance, the Arhuaco people argue that along the Kogui, Wiwa, and Kankuamo, they are the guardians of the Sierra Nevada de Santa Marta in Colombia: their ancestral land. They affirm that sacred sites and biocultural systems undergird the territory in a web-like manner and, as such, sustain the physical and spiritual balance of all things. Any disruption in the territory impacts its interconnectivity and disturb the equilibrium, causing natural disasters, such as droughts, floods, and fires. For those reasons, Indigenous Peoples protect and manage their land and natural resources in sustainable ways according to their Law of Origin's precepts. However, due to the criminalization, killings, and incarceration of Indigenous persons, the stewardship role of Indigenous Peoples has been gravely compromised.1
One of the main concerns for Indigenous Peoples is the alarming rise in killings as a response to their defense of their lands, territories and resources, and opposition to development projects. Even though Indigenous Peoples legitimately defend their territory against extractive projects and investments, some governments have placed them as obstacles to development and economic or political interests. Hence, these circumstances destabilize and weaken Indigenous Peoples’ internal organization and discourage their legitimate protest. Since 2012, The NGO Global Witness has released an annual report on the killings of Environmental Human Rights Defenders. In 2020, they reported that five out of seven environmental defenders murdered were Indigenous persons. The available data shows that seven of fifteen Latin American women environmental defenders killed that year were Indigenous. Thus, Indigenous women are at highest risk of bodily harm than men and face routine physical, psychological, and sexual violence for defending their territory and life.
The Global Witness’ report shows that countries like Brazil, Colombia, Mexico, the Democratic Republic of Congo, and the Philippines registered the highest numbers of Indigenous Peoples killed. As of today, 10 Indigenous leaders have been murdered in Colombia. For instance, last January, Breiner David Cucuñame, a 14 years old Nasa person and an environmental protector from Colombia, was killed by illegal armed groups attempting to reclaim social and territorial control over Indigenous Peoples' territory.
Another issue of great distress is the criminalization of Indigenous Peoples for opposing large-scale projects and requesting the respect of their rights to participation and free, prior, and informed consent. While there is a lack of documentation and insufficient data, the Special Rapporteur on the rights of Indigenous Peoples in the 2018 dedicated a report to the issue, emphasizing that she received hundreds of cases related to attacks and criminalization taking place in different parts of the world. This method of persecution aims to silence Indigenous Peoples through defamation campaigns, threats, harassment, followed by criminal charges, arrest warrants, long periods of pretrial detention, lack of procedural guarantees, legal counsel, and/or an interpreter, and so on. For instance, in Mexico, members of the Santa María and Ayotitlán communities and their lawyers were criminalized for opposing real estate mega projects. In the Democratic Republic of Congo, an Indigenous Pygmy leader was imprisoned on false charges for their land against conservation measures. In the Philippines, Indigenous Peoples defending their land have been criminalized through accusations of terrorism.
Furthermore, criminalization consequently leads to an increase in Indigenous Peoples’ imprisonment. This problem has not yet been subjected to a broad discussion by the public and is not of significant concern to states and regulatory agencies. Despite the evident need, the available information on Indigenous Peoples in prison is not accurate, nor is it as extensive as it should be, given the gravity of the issue. Indigenous Peoples voicing opposition to policies, laws, and megaprojects have been subject to a judicial system and state’s prisons. Those environments are alien to their own laws, justice practices, language, customs, and uses, creating a cultural fissure that detaches Indigenous Peoples from their collective identity.
Criminalization and killings demonstrate that the underlying cause of many of the challenges faced by Indigenous Peoples in the Global North and Global South derive from a common pattern: the lack of access to their territory, land and resources, and the distinct approach to development2. For Indigenous Peoples, development is based on community-led interventions built upon their autonomy, governance systems, stewardship of nature, and the sustainable management of their territories and natural resources. Conversely, states and other stakeholders endorse an economic development model based on the extraction of natural resources, promoting the escalation of extractive projects and investments— mining, dams, logging, and monocultures. These two incompatible visions of development explain why despite the existence of a dedicated and solid international legal framework that recognizes the rights of Indigenous Peoples to autonomy over their territory and self-determination, Indigenous Peoples continue experiencing violations of their rights.
From this perspective, how can we ensure the realization of Indigenous Peoples’ rights when a mainstream economic development model is taking place worldwide? I acknowledge some countries do not have constitutional or legal recognition of Indigenous Peoples. Sometimes, governments do not recognize the existence of Indigenous Peoples within their borders. Therefore, they are not entitled to exercise their collective rights, take legal actions to protect them, or have the legal capacity to own land collectively. However, there are some countries with prolific sets of rights for Indigenous Peoples. But at the same time, their economies rely on the extraction of natural resources happening where Indigenous Peoples live. For that reason, Indigenous Peoples are criminalized, killed, and deprived of their territory for opposing large-scale projects and defending their rights. In light of this dichotomy, one can affirm that the economic model's imposition leads to land grabbing, lack of participation in decision-making processes, loss of language, biodiversity, and traditional knowledge, and a failure to respect the right to free, prior, and informed consent. These are the drivers that urge Indigenous Peoples—at the expense of their lives—to stand up to external interventions and preserve their source of identity, culture, language, knowledge, food: their territory.
Luisa Castaneda-Quintana is a DCL candidate at McGill University's Faculty of Law. Her main research areas are legal pluralism, legal anthropology, Indigenous Peoples, conservation, extractivism, and judicial activism.