Land Claims Research Articles

Returning the Stolen Land (The Current Settlement of the Senamanenek Kampar Indigenous People with PT. Perkebunan Nusantara V)

Conflicts over land between Senamanenek Indigenous Peoples of Kampar Regency and PT. Perkebunan Nusantara V has occurred since the early 1990. While national legislation acknowledges adat (customary) as a legitimate basis for rights, the current legal framework presents significant hurdles for communities seeking to assert their land claims based on adat rights. As an empirical legal research, this study tries to propose a new dispute resolution model to deal with the problem. This research found that government intervention as the owner of State-Owned Company capital determines the resolution of customary land disputes such as the PTPN V and Senamanenek Indigenous Peoples disputes. The settlement was carried out after receiving a presidential order and the United Indonesia Cabinet Limited Meeting results by returning the land and its contents from the PTPN V to the government. Then, the government hands over to individual Senamanenek Indigenous Peoples members who are issued certificates of ownership through the TORA mechanism.

Preliminary Concept of Alternative Agrarian Reform for Justice: The Social Tenure Domain Model (STDM) Approach to Constructing a Just Society in Indonesia

The implementation of agricultural reform comprises the enactment of access and asset reform. In order to ensure compliance with the aforementioned instructions, the Indonesian government issued Presidential Regulation Number 86 of 2018, which stipulates the commencement of agricultural reform as a means to support asset and access reform. The primary goal of access arrangements is to enhance access to finance and various forms of support to enhance welfare outcomes through land utilization. This particular methodology is frequently denoted as community empowerment. The normative juridical research technique, commonly known as library law research, perceives law as a normative system that possesses autonomy, independence, and distinctiveness from society. The methodology necessitates the utilization of a conceptual framework that incorporates a social tenure domain model and a legal perspective. The research findings indicate that the central concept of agrarian reform for justice entails implementing a comprehensive land administration system encompassing diverse land claims and rights through the utilization of the Social Tenure Domain Model (STDM) approach. The concept of the social method pertains to a theoretical framework that centers on the impact of social influences on human behavior. The notion of the STDM explores the interconnection between individuals and land.

Pastoralism and Conflict Transformation in Nyangatom, Hammer, and Dassanech Community of Ethiopia

This study examined the practices of conflict transformation in Nyangatom, hammer, and Dassanech community of South Omo Zone Ethiopia using Qualitative research methodology, case study research design and employed FGD, semi structured interview, non-participant observation and document analysis. The issue of conflict transformation traced back to the works of Lederach in the 1980s and Galtung in the late 1970s. The concept, however, gained recognition because of the coming of the issue of human security by the international community and scholars. The nature of pastoralist and agro pastoralist conflicts arising in the study area led to examine the practices of the conflict transformation by various actors. This study indicated that the various actors working on conflict and peace do a very little activity to transform conflicts. They focus on conflict management, prevention, and resolution activities. This has been as a result of lack of attention to plan the issue of conflict transformation by the government. This study, therefore, sought to find out the role of the various actors in conflict transformation. The findings show those grievances, animal raiding, land claims, fishing rights, competition on water and pasture resources use are the sources of conflict. The study also examines the practices of conflict transformation activities in the study area. Resilience, rangeland management, NGOs intervention in peace dialogue, integration of pastoralism and agro pastoralism with commercial agricultures, drought and conflict early warning system, water resource management and development, development, rehabilitations of range land, and providing education to the conflict affected community are the activities done for conflict transformation. These activities had been instrumental in addressing conflicts and transforming relationships. The pastoralist conflict transformation and peace are not given emphasis by the government. The activities are not enough to transform conflicts but they are served as the driver of peace. The researcher recommends that the current conflict transformation mechanism tried in the area is did not change the conflict situation but the beginnings are goodly appreciated.

임차인이 지상물매수청구권을 행사한 경우, 석명의무와 동시이행항변권의 관계에 관한 연구

The supreme court case 94DA34265 (hereinafter referred to as ‘The Case’) says that in a lawsuit in which the lessor of land claims removal of ground facilities and delivery of the site against the lessee, if the lessee exercises the right to demand for the ground facilities purchase, the court has duty to elucidate whether the lessor is willing to demand delivery of the ground facilities at the same time as payment of the purchase price. (Hereinafter, elucidation above is referred to as ‘elucidation of simultaneous per- formance).
 At the basis of The Case, there appears to be an idea that if the lessor's claim changes to delivery of ground facilities, a judgment ordering simultaneous performance should be issued.
 However, according to majority opinion and precedent, for a judgment ordering simul- taneous performance to be issued, the lessee must file a plea of simultaneous performance. And the lessee's exercise of right to demand for purchase does not include a plea of simultaneous performance. Therefore, the idea that a judgment ordering simultaneous performance should be issued when the lessor's claim is changed to delivery of ground facilities is not valid. On the other hand, according to the minority theory that a ruling ordering simultaneous performance is possible even without a plea of simultaneous performance, the above idea is valid.
 According to the above majority opinion and precedent, elucidation of simultaneous performance is illegal as it exceeds the limits of the elucidation event. This is because the court indirectly informs the lessee of the existence of a plea of simultaneous performance by providing an elucidation of simultaneous performance to the lessor. On the other hand, according to the minority theory, the elucidation of simultaneous performance is not illegal because the outcome of the lawsuit is not affected even if the court informs the lessee of the existence of the plea of simultaneous performance.
 However, following the minority theory does not mean that elucidation of simultaneous performance is the court's duty. If the lessor requests delivery of ground facilities and the lessee's plea of simultaneous performance is acknowledged, the court may make a ruling upholding part of the claim. The court is not obligated to ensure that all claims are accepted through elucidation.
 In the end, The Case's position that elucidation of simultaneous performance is the court's duty is not valid, regardless of whether by majority or minority theory.

Are sport and traditional Inuit games identified as tools in current Inuit suicide prevention strategies?: A content analysis

ABSTRACT Eekeeluak Avalak, an 18-year-old Inuk wrestler who won the first-ever gold medal for Nunavut at the Canada Summer Games in 2022, dedicated his win to his late brother who died by suicide in 2015. Avalak openly attributed sport – specifically wrestling – to saving his own life. This story raises important questions about the role of sport and traditional games in Inuit suicide prevention strategies. Few studies have examined the role of sport or traditional games in Inuit suicide prevention strategies. In an attempt to reduce Inuit suicide rates, in addition to the National Inuit Prevention Strategy, three of the four land claim regions that constitute Inuit Nunangat have suicide prevention strategies. In this study, we used settler colonial theory, critical Inuit studies, and content analysis to examine if and how sport and Inuit traditional games are identified as prevention tools in these Inuit suicide prevention strategies. The results demonstrate that sport and traditional games have largely been overlooked as protective factors in current Inuit-wide and land-claim specific suicide prevention strategies. Moving forward, evidence-based and community-driven approaches could be funded, created, implemented, and evaluated as culturally-safe Inuit mental health intervention models to address the disproportionately high suicide rates among Inuit in Inuit Nunangat.

Commercial timber plantations and community livelihoods: Insights from comparative case studies in southern Laos

The social impacts of industrial wood plantations (IWP) in Southeast Asia are extensively contested. Whilst productive, well-managed IWPs can offer a range of benefits to broader societies, they have also been criticised as driving community displacement and economic marginalisation. There is benefit to comparative case studies that identify the conditions whereby IWPs can support improved rural well-being. This paper assesses changes in resource tenure and livelihoods following plantation establishment in three selected case communities in southern Laos, using a rural appraisal approach. The study finds that IWPs can contribute positively to local livelihoods in Laos, under conditions. These occur when sufficient land is reserved for diversified land uses; local people secure plantation employment; there is adequate compensation for formal and informal land claims; and there are tangible contributions to village infrastructure and development. The availability plantation wage labour alone was found to be inadequate for driving broad livelihood improvement. Fieldwork identified the lingering negative social impacts of uncompensated land dispossession. Assessments of realised community benefits of plantation schemes should be considered in relation to the increasing underlying value of forest-lands in Laos. The paper provides updated policy options for an improved balance between stakeholder interests in Laos' strategic plantation sector.

The Politics of Misalignment: NGO Livelihood Interventions and Exclusionary Land Claims in an Indonesian Oil Palm Enclave

ABSTRACT Across Southeast Asia’s extractive frontier, Indigenous people increasingly negotiate an influx of nonstate actors pushing partnerships and projects to steer livelihoods away from extractivism and toward forest conservation. Yet, NGOs and their donors often struggle to grasp Indigenous peoples’ changing needs and expectations that may prioritize sustaining an income, often via the promises extractive industries propose, over preserving fragmented forests for posterity. This paper examines three interventions by conservation NGOs in East Kalimantan, Indonesia, which leveraged custom (adat) and “alternative” livelihoods through territorial practices to dissuade a Dayak Modang community from releasing ancestral lands for palm oil plantations and coal mines. Drawing on the state’s definition of adat to demarcate Modang territory, NGOs and some Modang engaged in counter-mapping and livelihood initiatives as hopeful expressions of indigeneity and making a living through acts of territorialization. We explore how NGO territorial practices unfolded as simplified spatial expressions that leveraged adat identity, enclosures, and livelihoods, neglecting the contemporary realities of living in a fragmented forest frontier. Although NGO-Modang strategies temporarily slowed dispossession and deforestation, their misaligned livelihood and conservation programs may have reinforced social differentiation between and across Dayak and migrant groups to ultimately facilitate extraction’s expansion.

Making Waves: The Role of Indigenous Water Beings in Debates about Human and Non‐Human Rights

ABSTRACTRejecting nature‐culture dualism, contemporary anthropology recognises the mutually constitutive processes that create shared human and non‐human lifeworlds. Such recognition owes much to ethnographic engagement with diverse indigenous cosmologies many of which have, for millennia, upheld ideas about indivisible worlds in which all living kinds occupy a shared ontological space and non‐human species and environments are approached respectfully, with expectations of reciprocity and partnership. As many societies confront the global chaos caused by the anthropocentric prioritisation of human interests, anthropologists and indigenous communities are therefore well placed to articulate alternative models in which the non‐human domain is dealt with more equitably and inclusively. This paper is located comparatively in long‐term ethnographic research with indigenous communities in Australia, alongside the Mitchell River in North Queensland and the Brisbane River in South Queensland. It draws more specifically on involvement in legal claims for water rights by Māori iwis in New Zealand; in land claims by the Kunjen language group in Cape York; and in a recent ‘sea country’ case brought against a major multi‐national by the Tiwi Islanders in Australia's Northern Territory. It also makes use of a major comparative study of water beings in diverse cultural and historical contexts, and considers the central importance of water beings such as Māori taniwha and the Australian Rainbow Serpent in such legal conflicts, and in broader debates about human and non‐human rights. Like other water deities around the world, these beings personify the generative (and potentially punitive) powers of water and its co‐creative role in shaping human and non‐human lives. They are resurfacing today with an important representational role in contemporary conflicts over land and water.

Unsettling the Conversation on Trans Rights

This article argues that trans rights are trapped within settler frameworks of gender and rights, therefore making them incompatible with and in opposition to Indigenous lifeways. Starting with the premise that engagement with the settler state is not benign, the authors argue that trans rights-based organizing diverts and thwarts the potential for solidarity work with Indigenous struggles for freedom and is inherently limited in its potential to secure Indigenous futurity. The authors hope that trans studies and collective struggles organized around gender embrace anti-colonial and anti-racist praxis to result in tangible and discursive outcomes to bolster Indigenous cultural continuity and land-based connections. The authors use this article to call for a collective movement toward gender self-determination that is sensitive and reflexive of settler colonialism and produces tangible decolonial actions that will benefit the lives of Indigenous Two-Spirit, trans, and nonbinary people and align with movements for Indigenous self-determination. Queer and trans settlers are urged to begin a process of accountability and to engage a decolonial praxis to support Indigenous decolonization in all its forms—fighting for land claims, defending water and land rights, and supporting the resurgence of Indigenous erotics and gender formations. To be truly decolonial we suggest that trans political organizing moves beyond the settler framework of rights and toward Indigenous solidarity in politics, practices, and shared struggles, foregrounding anti-colonial, anti-racist, and pro-Indigenous values.

Indigenous Ecofeminism? Decolonial Practices and Indigenous Resurgence in Lee Maracle’s Works

Ecocritical and ecofeminist studies have frequently borrowed from Indigenous epistemologies to conform new approaches to human-nature relations, particularly now that the pressing climate crisis is making western societies contemplate the need for radical solutions. As Leanne Betasamosake Simpson remarks, “the western academy is now becoming interested in certain aspects of Indigenous Knowledge” such as “Traditional Ecological Knowledge (TEK)” (373). However, the scope of this interest is reduced and disconnects ecological knowledge from decolonial practices, such as land claims or Indigenous feminisms. Maile Arvin et al. emphatically support that “settler colonialism has been and continues to be a gendered process” (8) and thus its ramifications and effects (upon nature or Indigenous communities) cannot be detangled without an Indigenous feminist perspective. In this article, I focus on an ecocritical analysis of several works by Lee Maracle, who dedicated her career to the regeneration and revalorization of Indigenous systems of knowledge, in order to pinpoint the intersections between feminism, decolonization, and nonhuman ecological thinking that might develop into a potential Indigenous ecofeminism that truly recognizes Indigenous epistemologies in their full context. Basing myself off Nishnaabeg scholar Leanne Betasamosake Simpson’s theories on Indigenous radical resurgence, which assert that a cultural resurgence (such as a revalorization of Indigenous ecological knowledge) cannot take place without a political resurgence (such as the acknowledgement of Indigenous sovereignty), I argue that Maracle’s portrayal of natural elements and her imagining of human-nature relations is inextricably linked to a decolonizing perspective foregrounded on Indigenous feminism.

The United Nations Declaration on the Rights of Indigenous Peoples and the Sermon on the Mount

[Figure: see text] This paper examines what the Sermon on the Mount has to say about how Indigenous rights and traditions should be braided together with Canadian law to honour the intent of the UN Declaration on the Rights of Indigenous Peoples, and what the Declaration has to say about how the Sermon should be interpreted. The ethical demands of the Sermon require a fundamental respect for Indigenous world views, traditions, and land claims in this process, so that the sovereignty of Indigenous peoples over their lands and their right to self-determination are fully implemented and nation-to-nation relationships upheld between them and the Crown. Conversely, the Declaration decentres the Sermon. It requires that this same respect be demonstrated as the ethical demands of the Sermon are followed.

Dispute Settlement in Complete Matic System Land Registration

This article analyzes Legal Protection for Complete Systematic Land Registration (Pendaftaran Tanah Secara Sistematis Lengkap) or PTSL and Dispute Resolution in PTSL.This research is an empirical legal research with statutory approach, case approach, concept approach, and legal sociology approach. The results of this study indicate that legal protection for certificate holders in the PTSL Program is not absolute and only strong because the land registration system in Indonesia adheres to a negative publication system. Dispute settlement in the PTSL Program is resolved through the Non-Litigation and Litigation channels. Based on research at the Gianyar Regency Badan Pertanahan Nasional Office (BPN) or National Land Agency Office and the Tabanan Regency BPN Office, disputes over Overlapping Certificates and Inheritance Disputes dispute settlement through Non-Litigation Methods are carried out by means of Mediation accompanied by a Mediator, which Overlapping Disputes Pays little attention to the elements of Theory Legal Justice because there is no settlement procedure, whereas inheritance disputes have fulfilled the elements of the Theory of Justice where there is a fair procedure in the stages of settlement. Based on the results of research at the Tabanan Regency BPN Office and Karangasem Regency BPN There is a Customary Land Claim Dispute which was resolved through the Litigation Line at the District Court was decided based on considerations of coherence between Physical Data and Juridical Data in the issuance of Certificates of Land Rights which are in accordance with the Theory of the Legal System reflects the Substance The law has clear rules in the judge's considerations, the legal structure has law enforcement officers formed from the legal system, in this case the Adjudication Committee and Judges at the District Court, the Community's Legal Culture towards the PTSL Program reflects that there is still bad faith from the community in submitting its registration.

Eberhard Kranzmayer's Deutschtum: On the Austrian Dialectologist's Pan-German Frame of Reference

Abstract: The present paper offers a close reading of Eberhard Kranzmayer's texts from 1925 to 1960 in an effort to isolate Kranzmayer's major methodological themes. One such theme is a pan-German (großdeutsch) framework, in which the unity of German with a single standard variety is maintained. It will be shown how Kranzmayer used this assumption, combined with his belief in the cultural dominance of all things German, to perform "linguistic land claims" for Germany before and during the war. While his post-war texts are identical in argument, with some democratic window-trimmings, any land claims are more muted and cultural similarity is now stressed. Kranzmayer's time as director of the Institut für Kärntner Landesforschung, 1942–45, will be reviewed in regard to his claim that a people is determined by a standard variety: a status that he granted the Friuli, but not the Slovenes (the Windisch) and, certainly and always, the Germans. It will be argued that such pan-German mindset necessarily influenced conceptions of a budding Standard Austrian German and that, today still, Germanistik is largely bound by the idea of a One Standard German Axiom, in striking similarity to the 1920s.

Wabanaki Nationhood, Sovereignty, and the State of Maine: A Discussion on Wabanaki-American Treaty History and the 1980 Maine Indian Land Claims Settlement Acts

Wabanaki Nationhood, Sovereignty, and the State of Maine: A Discussion on Wabanaki-American Treaty History and the 1980 Maine Indian Land Claims Settlement Acts

New Spaces for Contesting and Negotiating Indigenous Land Claims in Northern Argentina

New Spaces for Contesting and Negotiating Indigenous Land Claims in Northern Argentina

Engaged Social Anthropology and Indigenous Land Claims in Malaysia

ABSTRACT The use of litigation has become an important strategy for customary land claims for the Orang Asli, the aboriginal people of Peninsular Malaysia. Increasing displacement from their customary territories, and having exhausted other official avenues, the Orang Asli are resorting to legal measures to protect their rights. Several landmark cases in the Malaysian courts favouring Orang Asli rights have given the Indigenous People hope in the legal system. However, lawsuits are risky, require an enormous amount of time and resources, and take a toll on the communities and others involved in the process. Relying on the court process risks reifying state power, reinscribing unequal power dynamics, and reinforcing essentialised notions of indigenous ‘culture’ and ‘tradition’. In this article, I draw upon my long-term research on Orang Asli activism and my experience serving as an expert witness in several Orang Asli customary land claims to discuss the limits and possibilities of social anthropological knowledge in the legal arena. Focusing on the Malaysian context, I reflect upon the challenges of speaking across different fields, translating social anthropological research into a form legible to the legal process, and the dilemma of being complicit in reifying hierarchies of knowledge. I consider how social anthropologists in their cultural expertise role might use the legal space to centre Indigenous knowledge, and challenge the more static understanding of indigenous culture and tradition.

The Multiple Roles of Socio-Anthropological Expert Evidence in Indigenous Land Claims: The Xukuru People Case

ABSTRACT In 2018, the Inter-American Court delivered the first – and so far, only – judgment against Brazil on Indigenous land rights. This leading decision upheld the state’s failure to comply with human rights obligations due to the non-removal of non-Indigenous individuals from the territory of the Xukuru people. Such an issue, namely, insecure land tenure affects Indigenous peoples worldwide. The decision’s outcome consolidated a critical trend in international law concerning the concept of Indigenous lands: a place where Indigenous peoples have their residence and holistically develop their life, which states must actively protect, according to Article 21 of the American Convention read in conjunction with Article 1.1 and 2 thereof. By analyzing secondary sources (inter alia, ethnographies and court documents), this paper addresses the role of social (or cultural) anthropology regarding expert evidence in the Xukuru land claims. It articulates the Brazilian and Inter-American legal framework on expert evidence and Indigenous land rights with the literature on ‘anthropological expertise’ and ‘cultural expertise’, which includes the branches of forensic social anthropology and expert social anthropology. This analysis underscores the evolving challenges concerning expert evidence in legal-administrative procedures on the national and international levels. It argues that cultural anthropologists acting as experts on these levels need different sets of skills, which should be developed through special training. Thus, this paper amplifies the interdisciplinary dialogue between law and social anthropology on the topical issue of human rights adjudication.

Anthropology in Australian Indigenous Legal Cases: What I've Learned from the Law and What Lawyers Have Learned from Me

ABSTRACT Reflecting on several decades of my applied research, expert witness roles and a forensic methodology, this article addresses the application of anthropological studies in Australian legal cases concerned with various aspects of Indigenous customary law. In the context of traditional land claims, cultural heritage assessments and native title, both the achievements and challenges for anthropological inquiries are canvassed. Against arguments from some academics that applied work is intellectually inferior and politically compromised, the article reports my experiences in an arena of complex and enriching social science inquiry. The article engages with Indigenous land aspirations in a settler society while considering the implications of cultural change and adaptation, strategies of recuperation of customary knowledge, and the robustness required for successful anthropological studies of this kind.

Forensic and Expert Social Anthropological Practice: An Introduction

ABSTRACT This special issue of Anthropological Forum presents a collection of articles by international practitioners of forensic and expert social anthropology (FESA), and related areas of law. The forensic and expert specialisation of social anthropology focuses on the provision of evidence to legal-administrative processes overseen by courts and other legally empowered organisations, where human social culture is deemed an important factor. Social anthropology, as a field of expertise that studies links between culturally specific, collectively held ideas and observable patterns of social interaction, is an appropriate source of evidence for such processes. However, the field in general does not necessarily confer the specific training, study and experience required by the highly probative demands of presiding authorities. To address this gap, FESA advances a range of legally relevant concepts, objective investigative and analytical methods, and justice-oriented ethical principles. FESA applies this three-part focus consistently in its engagement both with legal-administrative processes and with the communities and individuals who seek justice using those processes, many of whom are marginalised within the national populations to which they belong. Contributors to this special issue have backgrounds working in Australia, Southeast Asia, the Americas, Africa and Europe. Variation between the legal-administrative regimes in each of these regions highlights both FESA’s universal relevance, and its emerging coherence as a specialist field. The articles brought together in this special issue describe FESA practice under a range of legal-administrative regimes spanning Indigenous land claims, intellectual property disputes, cultural heritage preservation procedures, asylum claims and allegations of gender-based discrimination and genocide.

Articulating Indigenous Futures: Using Target Seeking Scenario Planning in Support of Inuit-led Fisheries Governance

Futures thinking is an increasingly popular approach to solving complex environmental problems because it offers a framework to consider potential and desirable futures. It is also possible to create highly participatory future planning processes that incorporate the perspectives, beliefs, and values of resource users. In 2019, a group of fisheries stakeholders in Nunatsiavut, an Inuit land claim region in northern Labrador, began a target seeking scenario planning process to help them create a vision for the future of commercial fisheries in the region. Through this process, the group hoped to not only create a vision of Inuit-led fisheries but also to advance communication, collaboration, and learning for the group. In this paper, we reflect on the process we underwent over the past few years, including the research design, data collection and analysis, and the results of the project to broadly consider the strengths and weaknesses of participatory scenario planning for Indigenous governance. Reflecting on the process that we undertook provides important, experience-based knowledge for future projects. The elevation of Inuit voices makes this vision specific to the region and reframes fisheries as a tool for cultural and political rejuvenation in the region.