Colorado Journal of International Environmental Law and Policy

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FOR EDUCATIONAL USE ONLY
5 Colo. J. Int'l Envtl. L. & Pol'y 149

Winter, 1994

Endangered Peoples: Indigenous Rights and the Environment

*149 INDIGENOUS PEOPLES AND THE ENVIRONMENT: THE CASE OF THE PASTORAL MAASAI

OF KENYA

Joy K. Asiema [FNd1]

Francis D.P. Situma [FNdd1]

Inc.; Joy K. Asiema and Francis D.P. Situma

I. INTRODUCTION

A great variety and number of communities in the world are referred to or refer to themselves as indigenous peoples. [FN1] National minorities, nomadic peoples, and displaced peoples have been referred to as indigenous, particularly where they have been subjected to discrimination, exploitation, dispossession of their lands, and relocation. Isolated or marginalized groups that have not been subjected to, or subjugated by, colonialism have also been referred to as indigenous because of their historic presence on a particular territory, their preservation of ancestral customs, or their incorporation into a state with different national, social, and cultural characteristics from their own. [FN2]
Despite these varied definitions, indigenous peoples can be collectively described as people descending from the original inhabitants of an area that has been taken over by more powerful outsiders, with a distinct language, culture, or religion. Most think of themselves as custodians--not owners--of their land and other resources and partly define themselves by reference to the habitat from which they derive their livelihood. They commonly live in, or maintain strong ties to, a subsistence economy; many either are, or are descendants of, hunter-gatherers, fishers, nomadic or *150 seasonal herders, shifting forest farmers, or peasant cultivators. Their social relations are often tribal, involving collective or communal management of natural resources, thick networks of bonds among individuals, and group decision making, often by consensus among elders. [FN3]
More than 300 million indigenous peoples live in more than seventy countries. They inhabit almost every climate zone from the remote arctic regions and the deserts of northern and southern Africa to the Pacific Islands and the rain forests of Asia and South America. Great diversity in language, culture, dress, religion and habit exists among indigenous peoples. At least 5,000 indigenous groups can be distinguished by linguistic and cultural differences or by geographic separation. [FN4] Although some are pastoralists or hunter-gatherers, others live in cities and participate fully in the culture of their national society.
Of the common traits that indigenous peoples share, probably the most notable are the retention of a strong sense of their distinct culture and a strong identity with their ancestral homelands. They conceive of their land as a substance endowed with sacred meanings, which defines their existence and identity and to which they are inextricably attached. Similarly, the trees, plants, animals, and fish that inhabit the land are not just natural resources in the popular sense but are highly personal beings, which form part of indigenous peoples' social and spiritual universe.
Despite their diversity, indigenous peoples face common problems and concerns. These range from the confiscation of their traditional lands and natural resources which they have depended upon for countless generations, to the adulteration of their indigenous knowledge and practices and erosion of their culture. They seek intellectual property rights to their knowledge about natural resources on their lands, which they have sustainably managed and view themselves as the world's most experienced environmentalists with a role to play in environmental protection and conservation, especially of the ecosystems they have traditionally inhabited. [FN5]
*151 Although indigenous peoples have existed for a long time, it was not until 1953 that the United Nations (UN) became interested in their welfare. In that year, the International Labour Organization (ILO) launched a study of the persistent violations of their human rights. As a result, in 1957 the ILO General Conference adopted the Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (hereinafter Convention 107). [FN6] Convention 107, whose main objective was protection and integration of indigenous peoples into the dominant culture of the state, applied to:
members of tribal or semi-tribal populations in independent countries which are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region of which the country belongs, at the time of conquest or colonisation and which, irrespective of their legal status, live more in conformity with the social, economic and cultural institutions of that time than with the institutions of the nation to which they belong. [FN7]
Specific provisions were made for land ownership and control, [FN8] recruitment for and conditions of employment, [FN9] vocational training, [FN10] social security and health, [FN11] education, and the means of communication. [FN12] Convention 107 entered into force on June 2, 1959, and was ratified by twenty-seven states.
Convention 107 was revised and replaced in 1989 by the Convention Concerning Indigenous and Tribal Peoples in Independent Countries (hereinafter Convention 169). [FN13] Convention 169 entered into force on September 5, 1991, after ratifications by Bolivia, Colombia, Mexico, and Norway. [FN14] Convention 107 still remains in force for those States that ratified it but which have not yet ratified Convention 169. [FN15] The Preamble to Convention 169 recognizes the legitimacy of indigenous peoples' aspirations to exercise control over their own institutions and to maintain and develop their identities, languages, and religions. The Convention defines "indigenous" peoples as:
*152 peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. [FN16]
The Convention qualifies its application by stating that "[s]elf-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which this Convention shall apply." [FN17] This qualification adds a subjective and limiting element to the enumerated criteria and renders the definition awkward. If "indigenous" people do not identify themselves as such, conferring upon them the rights reserved under the Convention is paternalistic and patronizing.
The Convention then sets goals toward which governments should work, [FN18] lays down guidelines for a participatory approach to decision making, [FN19] and provides specific provisions for the protection of these peoples' rights. [FN20] Like Convention 107, Convention 169 expressly recognizes the importance of the territorial basis for indigenous peoples, including their relationship "with the lands or territories, or both as applicable, which they occupy or otherwise use ...... " [FN21] Governments are asked to take steps to identify lands that are traditionally occupied by indigenous peoples, to guarantee effective protection of indigenous peoples' rights of ownership and possession, [FN22] and to safeguard their rights to natural resources in the lands occupied by them, including the use, management, and conservation of these lands. [FN23] Indigenous peoples shall not be removed from the lands that they occupy except where such removal is "considered necessary as an exceptional measure" and with full compensation for loss or injury suffered by relocation. [FN24] Whenever possible, they shall have the right to return to their traditional lands as soon as the grounds for relocation cease to exist. [FN25] If return is not possible, they shall be provided with lands of equal quality and status to those previously occupied. [FN26]
In 1982 the UN Commission on Human Rights initiated, and the UN Economic and Social Council approved, the formation of the Working *153 Group on Indigenous Populations. [FN27] The group meets each summer to take testimony on the status of indigenous peoples around the world. More significantly, the group is charged with the task of drafting a Declaration of the Rights of Indigenous Peoples, to be adopted by the UN General Assembly.
At the end of its eleventh session in the early fall of 1993, the Working Group agreed upon a Draft Declaration of the Rights of Indigenous Peoples. [FN28] The forty-five article document covers every conceivable problem related to indigenous peoples' rights, ranging from self-determination and land ownership to the maintenance and development of transfrontier contacts and relations and cooperation in socioeconomic and political activities. [FN29] The reference to the right of self-determination is purposefully cautious; self-determination is to be exercised within the legal framework of each state. It is limited to internal self-determination and does not permit indigenous peoples to secede. [FN30]
With respect to environmental conservation, the Draft Declaration recognizes that respect for indigenous knowledge, cultures, and traditional practices contributes to sustainable development and proper management of the environment. [FN31] It also provides that indigenous peoples have the right to their traditional medicines and health practices, including the right to the protection of vital medicinal plants, animals, and minerals; [FN32] the right to the conservation, restoration, and protection of the total environment and the productive capacity of their lands, territories and resources with national and international assistance for that purpose; [FN33] and the right of full ownership, control, and protection of their cultural and intellectual property. [FN34]
It remains to be seen if governments will be persuaded to accept the Draft Declaration and thereafter work toward negotiating and adopting a legally binding international instrument along the lines of the 1948 Universal Declaration of Human Rights [FN35] and the subsequent 1966 instruments. [FN36] This will depend, inter alia, on how politically sensitive the Draft Declaration *154 provisions are viewed by states, particularly those in Africa and Asia which are anxious about fratricidal civil strife that might arise as a result of emphasizing some of the Draft Declaration's rights.
In order to draw attention to the existence and the needs of indigenous peoples, the 45th Session of the UN General Assembly adopted a resolution on December 18, 1990 proclaiming 1993 the International Year of the World's Indigenous People. [FN37] The purpose of the proclamation was to strengthen international cooperation in solving problems faced by indigenous communities in areas such as human rights, the environment, development, education, and health. [FN38] The theme chosen for the year was: "Indigenous People--A New Partnership." [FN39] This implies that indigenous peoples are equals with all other communities and that the partnership will provide them justice. The climax of the year was the World Conference on Human Rights held in Vienna in June 1993. Indigenous peoples from several countries participated in this conference which provided an international forum for them to discuss their views and concerns.
Kenya sent a delegation of the Maasai to the Vienna Conference. In addition to being the most widely known of the indigenous communities in Kenya, the Maasai are the most suitable Kenyans to attend a conference at which the problems of indigenous peoples are discussed because they have faced the most complex issues as a consequence of Kenyan national development, environmental protection, and wildlife conservation policies. Their traditional lands are home to more varieties of Kenya's flora and fauna than any other single commmunity's lands. They have been custodians of Kenya's wildlife, and their contribution toward environmental and wildlife conservation is invaluable. Although they have had a long-standing proprietary interest in these rich lands, they have suffered great injustices over time.
The remainder of this article discusses the Maasai and their history and explains the environmental and socioeconomic changes to which they have been subjected. It then suggests ways of addressing their struggle with the Kenyan government over environmental conservation in light of the international developments previously discussed.

*155 II. THE MAASAI AND THEIR HISTORY

Many Western anthropologists and historians who have had contact with the Maasai have come away from the experience with a deep feeling of admiration and affection for them. The Maasai have a unique glory and an unmistakable air of invincibility or superiority. Vincent J. Donovan, a Holy Ghost Father of the Maryknoll Society, who worked as a missionary among the Tanzania Maasai, said:
One has to see them suddenly silhouetted against the horizon, tall, spare, proud, leaning on their shields and spears and staring silently across the plains, to catch a glimpse of that wisp of history still being lived ...... There is a trace of ancient Egypt in their finely chiseled features, in their slightly slanted eyes, in their reckoning the beginning of any month by the dying of the moon, in their half forgotten customs and perhaps in their blood.
Dressed for all the world like Roman soldiers, red from head to feet, red tunics, red helmets made of mud, with spear, shortsword and shield, they stride across the plains and consciousness of Africa, the finest example of what Africa once was. [FN40]
The Maasai inhabit the Rift Valley area of Kenya which stretches along western Kenya and into northern Tanzania. Those in northwestern Kenya, the Purko Maasai, are sedentary agriculturalists, while those in the southwestern part of the country, the Kwavi Maasai, are nomadic pastoralists.
The settlement of the Maasai in Kenya can be traced to the first millenium A.D., although historians have not been able to ascertain the exact date of their migration and settlement there. Their ancestors have been traced partly to the Hamites, who intermarried with the Nilotes of the Nile River basin north of East Africa. These Nilo-Hamites migrated to the south, down the Nile basin into northern Kenya's Lake Turkana region and into southern Ethiopia. They moved further south, below the equator, to the region of the great lakes Victoria, Tanganyika, and Nyasa, pushing the Bantu from the rich savannah pasture and grazing highlands and confining them to the less-favorable pastoral areas. As they trekked southeast, pushing out the indigenous hunters, they claimed additional savannah country for the increasing number of cattle they had acquired. [FN41] By the seventeenth century, the Maasai had reached the Kenya Highlands and had spread out to Kinangop, Laikipiak, Nakuru, Naivasha, and other surrounding areas of the Rift Valley. [FN42] Some groups had spread southward across Loita, Mara, *156 and Serengeti into Tanganyika and southeastward to Ngong, across the Athi and Kaputiei plains to the foothills of Mount Kilimanjaro. It is believed that as the Maasai migrated, they either displaced other populations to marginal areas, where they had to abandon their pastoral economy, or they simply assimilated them. [FN43] A powerful fighting people, the Maasai encountered no resistance because their neighbors lived in endless fear of the Maasai's determination to secure their cattle and capture their women. [FN44]
The carving up of East Africa in the early 1880s between the British and German colonialists split Maasailand into two different political entities.