Exclusive interview with Dr. Albert Barume

Land rights are fundamental for Indigenous Peoples' rights. It's the incarnation of what they are culturally, and it's the centre of what they've lost. When that connection between  Indigenous Peoples or nations with their land is lost, the consequence is the loss of the cultures, the loss of languages, and the loss of communities as such. They become an aggregate of individuals who once were communities. For me, that's really where the leadership of Indigenous Peoples should start and should be grounded – there can never be too much focus on land rights.

But there is no way an Indigenous People can take their fight forward if they are not a strong community. One of the main attacks on Indigenous Peoples was to disorganise them as a society, as a nation. Indigenous Peoples were left as a mosaic of people without strong institutions capable of gathering them. It's only once a community has become a force that it can move on to start claiming its rights.

One of the lessons that I've seen is Indigenous peoples’ leaders working on their community, trying to revive what has to be revived, trying to strengthen what needs to be strengthened, and trying to make traditional institutions viable so that they can keep the community together, make the community stronger, and claim land rights.

Indigenous Peoples' rights have made progress internationally and in some countries. But it's relatively recent progress. We're nearing the 25th anniversary of the United Nations Declaration on the Rights of Indigenous Peoples, which took almost the same number of years to be negotiated. It's not long ago that we didn’t have a specific standard, a coherent, complete standard – like the Declaration – that clearly describes and provides redress mechanisms against the historical injustice Indigenous Peoples went through.

This is me trying to look at the positive side and the glass half full, considering that in many countries there is still a real issue of recognising Indigenous Peoples' rights as such, recognising that a group of Indigenous Nations went through something very, very specific that needs to be redressed.

You cannot move toward the full implementation of Indigenous Peoples' rights if you have not started by recognising Indigenous Peoples. It's only once legal recognition has been achieved that a government can pass on redress mechanisms.

Even in a country where there has been legal or formal recognition, including through constitutions, national laws, and national policies, you still have pushback for those legal frameworks to be translated into policy and for those policies to be fully implemented. In many countries, communities are living side by side with non-Indigenous Peoples who took land from Indigenous Peoples. Within such a context, when a State starts talking about redressing historical injustice against Indigenous Peoples, certain communities feel threatened. So politically, you still have that aspect as well.

The Indigenous Peoples’ legal regime is a regime that seeks to bring equality, because Indigenous Peoples do not enjoy the same rights on the same footing as their fellow citizens, including land rights. It's not really about more rights or bigger rights or special rights for Indigenous Peoples.  Conveying that message is still a political challenge in many, many countries.And here was this voice of authority. That's why, since then, I've been very keen to get young voices. I've given up panels. I've given up actually speaking to media when I get the access, and I say, "Well, actually, I'd like this young person to step in for me from time to time." I think anything like that lets people have the access. And they're the ones that should [have it], because they have the authority, they have the legitimacy. They're the voice.

It worries me that debates in climate forums do not go far enough. Sometimes, we mix Indigenous Peoples’ land rights with other groups’ land rights, as if they were the same rights. They are not. These forums risk lumping together rights that are different, and legally weakening the argument for Indigenous Peoples’ land rights. That's why Indigenous People in many of those processes feel like their issues are not profoundly addressed.

It's really important that Indigenous Peoples' rights to land are understood properly. The land rights of Indigenous Peoples are sometimes equated with the concept of property rights in modern or written law. Yes, there is an aspect of property rights, but one should understand that these rights of Indigenous Peoples over land are mostly grounded legally in non-racial discrimination norms. That's very, very fundamental.

Once you have demeaned somebody, once you have dehumanised somebody – to label them as structurally and socially disorganised and savage – then you morally build an argument for them not owning land. It cannot be undone, unless a state recognises explicitly that land was taken away on the grounds of racial discrimination.

Under international law, the rights of Indigenous Peoples over land seek to reverse the racial discrimination committed against them. And that makes those rights so strong. Because, under international law, non-racial discrimination is a peremptory norm. These are almost mandatory norms, whether or not a state has ratified something about it. That's how strongly legally grounded Indigenous Peoples' rights should be. Not everyone’s property rights are grounded legally in the norm of non-racial discrimination. This recognition has not really transpired enough in many climate change processes.

The second point is that climate processes have also not understood that for Indigenous Peoples, land rights are also grounded  in self-determination, in addition to the norm of non-racial discrimination. Indigenous People cannot possibly self-determine, live in dignity, or be in charge of their destiny if they cannot preside over or decide on their land rights.

We have noticed in many countries, and particularly for Indigenous Peoples, there has not been an opportunity to present land beyond being a commodity. But their lands constitute a territory. That's why Indigenous Peoples are called nations. That's why they are called Peoples. The closest concept is national territory.

A state cannot exist without a national territory.  This is why the right to self-determination originates from the decolonisation movement. Indigenous Peoples could have gone through the same process. They make a similar claim of organised societies, structured societies that existed, but were then taken over by outside forces. In international law, you undo that injustice through the right to self-determination. That's why the right to self-determination applies to Indigenous Peoples – because they were nations, they are nations.

Indigenous Peoples have the opportunity to reach out to the mandate, including through the communication or allegation mechanisms of the mandate. It's the mechanism that allows a Special Rapporteur to pick up on allegations of human rights violations that Indigenous Peoples submit to him or her.

Daily, we receive these allegations and take them on to engage with states, because I consider the UN Special Rapporteur mandate really as a voice-enhancing tool for Indigenous Peoples. This channel is something I want to personally focus the mandate on, putting in place a team and a protocol for all those cases to be processed, and to take on as many as we possibly can. There is an email through which those complaints come in, which enters the system and allows a case to be processed.

The second aspect of the question is really important. The criminalisation of Indigenous Peoples, in my view, is a missed opportunity by states. Indigenous People live in the last square meters of many countries. They live on borders; they live across borders. Why are states not partnering with Indigenous Peoples? Instead of partnering, they leave them somewhat abandoned.

And organised crime, cross-border crime, extremist groups,  terrorist groups cross borders, literally feeding on those feelings of being abandoned among Indigenous communities. Extremist groups, trafficking networks, drug trafficking networks, they tell Indigenous Peoples, “Here you are, you are abandoned by your state, you are left alone, and you don't have access to public services.” Those extremist groups rely on Indigenous Peoples. They need their traditional knowledge to spread and to operate.

And then suddenly the State comes in and calls Indigenous People terrorists, enemies of the state, and so on. So my argument—and I have been making this to many states—is: “Why don't you make Indigenous People the first line of your protection?”

Recognising Indigenous Peoples’ right to self-determination over land, strengthening their traditional institutions, and making the community more resilient—this will make you, as a State, much more secure. The potential of Indigenous Peoples contributing to international security is huge and is an untapped potential. This could shift Indigenous People from being criminalised to becoming real partners of states, in conditions where Indigenous People also have more control over their land, because they would be given those capacities and enhancements, including resources.

Another key point I'm looking at is FPIC. I'm quite worried about Free, Prior, and Informed Consent, because in my understanding, FPIC is a safeguard right. It is a right that was devised to protect land rights and rights over resources.

And I'm wondering: how can you possibly apply FPIC in a vacuum, in a context where rights are absent? When those substantive rights that FPIC is supposed to safeguard are not recognised for Indigenous Peoples, when they are not protected, how can someone possibly seek FPIC in a vacuum of rights?

FPIC is saving  private investors, who tick a box and can publicly say, “Yes, we have our FPIC from the community.” FPIC has become equated now with the sharing of information, an overly low-grade consultation. But FPIC should be the highest grade of consultation.  

It originates from the medical domain. The concept of FPIC was an act of seeking consent for serious medical procedures. A patient or a family member would agree to certain medical actions because it’s a safeguard for their right to life. That’s where it originates—the concept of being a safeguard.

Now, you can imagine: is it possible to have consent when someone has died? You can’t possibly have a safeguard protecting a life that is no longer there or doesn’t exist. Indigenous Peoples’ FPIC should be sought to protect their right over land, territory, and resources.
I do see that within my mandate. I want to look at how those rights are operationalised in concrete terms.

I sincerely believe that today is an opportunity to reaffirm the centrality of human rights in international relations and the relationship between States and their populations.
It is an opportunity because it shows generations who have taken peace for granted, international stability for granted—the importance of those human rights principles on which international stability and international order guided by norms were grounded. These are the principles of equality, non-discrimination, self-determination, and so on.

Because I think the world today is giving us real proof of what a domestic context and international scene not guided by those international human rights standards can look like. We don't need to imagine them anymore. We watch them. We see them. We hear them daily. So I see that as an opportunity for Indigenous Peoples' land rights—that centrality of human rights.

But my second point, and something I will probably say in Bogotá and have said here, is: I will ask Indigenous Peoples to strongly frame their land rights—to frame them in the right way. Indigenous land rights are not grounded in an instrument like—and I have nothing against an instrument like the CBD.  It’s not as strong as the international norm on non-racial discrimination.

They have to be able to articulate this very clearly. Because when it’s done, it does justice. It shows the historical injustice and the moral weight that Indigenous Peoples' land rights carry.
I would like Indigenous Peoples, particularly youth, to internalise this profoundly and carry it forward. Because that’s the best and strongest grounding you can give to Indigenous Peoples’ land rights.