Indigenous Peoples’ Right to Adequate Housing


Source: Indigenous Peoples’ Right to Adequate Housing, UNHABITAT, 2005


This research indicates that while indigenous peoples and communities across the world are culturally quite distinct, their housing conditions and experiences are very similar. As illustrated in the case studies, indigenous peoples living within the borders of one country are not always homogenous. Each ethnic group and community has specific characteristics and has a particular relationship with the government and the mainstream population. Moreover, each indigenous community has distinct cultural expressions and approaches to their natural environment. Each of the indigenous peoples covered in this report continue to struggle with the effects of processes such as colonialism, nationalism and/or privatization. In each instance, the dominant culture used some amount of force to conquer indigenous peoples, and then proceeded to homogenize them and/or compel them to assimilate into the dominant culture. Thus, as a result, indigenous peoples lives were fundamentally altered and their very existence andidentity threatened.

One of the implications of colonialism and nationalization as exposed in each of the case studies is the denial of self-determination and the exclusion of indigenous people from decision-making structures and processes. With respect to housing, this has meant that indigenous people have not been able to access and control the resources they need to develop and manage their own housing. At the same time, indigenous peoples and their communities have not participated in a meaningful way in the development and implementation of housing policies and programmes. They have also been largely excluded from participating in discussions or negotiations regarding development projects and other income generating activities, such as mining, on their lands.

Indigenous peoples are subject to discrimination and inequality in almost all aspects of housing, including: laws and policies which have discriminatory effects; discriminatory allocation of resources for housing, including credit and loans; and discriminatory practices of private landlords in the rental market (which often prevents indigenous peoples from renting even the worst accommodation).

Policies and programmes related to housing generally discriminate against indigenous peoples directly or have discriminatory effects. These inadequate and discriminatory conditions prevail even in countries where international human rights treaties have been ratified and where there are domestic laws and mechanisms aimed at promoting equality and protection against discrimination in housing, and/or legislation recognizing land title rights for indigenous peoples. Simply put, indigenous peoples human rights often seem to fall on the wayside in the face of economic development interests. Indigenous women experience gender-based discrimination with respect to a number of human rights, directly or indirectly affecting their possibility to enjoy the right to adequate housing.

Drawing on the case studies, and with this general analysis as point of departure, this section provides an overview of some of the most prominent findings in the following areas: housing and living conditions; housing laws and policies; and housing programmes and projects.
V.A. Current housing and other relevant living conditions With the exception of the Saami in Scandinavia, indigenous communities in each of the case studies have a far inferior standard of living compared to the rest of the population. Poverty is one of the factors that most defines the lives of indigenous peoples in almost every region of the world. The higher incidences of inadequate housing and homelessness among indigenous peoples are clear manifestations of their relative poverty. A number of the case studies reveal that indigenous poverty and disadvantage and discrimination with respect to the right to adequate housing is closely interconnected with the dispossession of indigenous peoples from their lands. In many instances, land dispossessiona forces indigenous peoples to leave their lands. This impacts on indigenous peoples in several ways. It leaves them with no means to sustain themselves and gain a livelihood, and as a result they often cannot build or create housing for themselves. As a result of both a loss of livelihood and absence of adequate housing, indigenous women and men are compelled to migrate, often to cities and towns in search of both.

The case studies show that indigenous peoples generally do not enjoy adequate housing as defined by CESCRs General Comment No. 4, discussed in section III.A.2.a of this report for the following reasons:

  • Security of tenure: Indigenous families and communities in different regions of the world lack security of tenure for a number of reasons, such as the fact that their land can be expropriated by the State for the exploitation of resources; they can be forcibly displaced by the State to make way for development projects; custom and tradition can be used by private individuals to dispossess a widow or divorced woman of her home and lands; and that sufficient measures are rarely taken against racist practices by landlords and other actors. Whether as a result of initial colonization processes, changes to land tenure schemes, or forced eviction for private development projects or the exploitation of natural resources.
  • Affordability: Housing in cities, where land is scarce, is becoming increasingly expensive, which makes owning or even renting prohibitive, especially for indigenous peoples who tend to be amongst the poorest in almost every society. Unless social housing is available, as in the Scandinavian countries, indigenous peoples have no choice but to either live in overpriced rental housing from which they may be evicted for non-payment of rent or to live in slums, informal settlements or on the streets.
  • Habitability: Many of the studies revealed that indigenous peoples often live in overcrowded conditions. Overcrowded housing tends to accelerate the deterioration of dwellings and increases the risk of the transmission of diseases and the promulgation of domestic violence and other abuses and violations. The case studies also reveal that indigenous peoples often live in dwellings that do not protect them from the natural elements, and that there is a close link between poor housing conditions and ill health.
    Availability of services: Many indigenous households lack basic services such as drinking water and electricity. The case studies reveal that this is true regardless of the level of development of the country.
  • Accessibility: Adequate housing is not always accessible to indigenous peoples, especially in urban areas, as a result of the discriminatory attitudes of housing providers, which creates barriers in the rental housing market. Indigenous women encounter further barriers in terms of housing access as a result of gender-based discrimination in laws, customs and traditions which prevent indigenous women from owning, renting and/or inheriting land, property and housing, particularly upon marriage dissolution or upon the death of a womans spouse.
  • Location: Many indigenous peoples live in remote locations where essential services such as health clinics/hospitals and schools are not available.
  • Cultural adequacy: Many indigenous peoples are currently living in housing that does not meet their cultural needs. For example, in Australia, many indigenous people live in social housing that cannot accommodate their kinship ties; and many indigenous peoples in different regions have to give up traditional and culturally specific housing when they migrate to cities.

In addition to the above, indigenous women, whether in urban or rural areas, are faced with a number of gender-specific obstacles to the full enjoyment of their right to adequate housing. Violence, particularly domestic violence, can be identified as one of the most serious and pressing obstacles. Poor and inadequate housing conditions, characterized by overcrowding, lack of privacy, lack of sanitation and basic services exacerbate womens vulnerability to domestic violence. As shown, indigenous peoples are often relegated to intolerable living conditions, such as mining camps or growing urban slums, where women are experiencing increasing levels of domestic violence. Another phenomenon is the fact that indigenous women are unable to acquire housing independently from men. In some circumstances, society alienates women who live alone, be they divorcees, widows, single women, or married women who are separated from their husband. Additionally, often due to customary law, traditions and culture, women do not have the opportunity or possibility to own, acquire, or inherit property. Testimonies indicate that indigenous women are often compelled to remain in abusive relationships and endure domestic violence, due to lack of housing alternatives and financial and moral support.

The case studies reveal that extreme poverty, the deterioration and dispossession of lands, forced evictions, employment prospects, and the centralization of services in cities, combined with the general lure of city life, is resulting in many indigenous people migrating to cities and towns. In the cities, indigenous people experience extreme poverty, rampant discrimination and a loss of spiritual, community and family ties as well as a loss of indigenous culture and values. Their housing conditions are often very poor: with home-ownership prohibitively expensive. Many, therefore, live in informal settlements and slums, while others are left homeless.
Forced eviction is one of the most egregious violations of the right to adequate housing facing indigenous peoples across the world, in both rural and urban settings. In most instances, forced evictions are the result of development projects such as hydro-electric dams, mining, and logging. Indigenous lands are targeted for a number of reasons: these lands are often resource rich, located in marginal or remote areas (not populated by the majority population), and often perceived as not legally owned by indigenous peoples. In other instances, forced evictions of indigenous peoples occur as a result of discriminatory housing policies implemented by the State, private landlords and even families and individuals.

The short and long-term effects of forced evictions on indigenous families and communities (regardless of where they occur) are severe. In particular,indigenous peoples suffer both spiritually and physically from the dislocation from their homelands which destroys their ability to be economically selfsufficient, decreases living standards, causes social and health problems and erodes tradition and culture.

Forced evictions and the dispossession of lands have particularly severe impacts on indigenous women. For example, it often results in an increased workload for women, who must walk long distances to find alternate sources of water of fuel wood. Also, women can lose their integral role in agricultural production, driving them out of income-earning productive activities and into a situation of economic dependence on men.

V.B. Laws and policies relevant to housing

In many of the case studies reviewed in this report, a solid and progressive legal foundation for the rights of indigenous peoples have been adopted or are in the process of being adopted. Some legislation recognize the land rights of indigenous peoples and protect them against forced relocation. In many instances, however, the laws are not being implemented properly.

V.B.1. International law

All States examined in the case studies in this report have ratified or acceded to key international human rights instruments of general application such as the ICESCR, ICERD, CEDAW, and ICCPR. Three of the States reviewed in this report have also ratified ILO Convention No. 169 (Ecuador, Norway and Mexico).

Given the prevailing inadequate housing conditions of indigenous peoples in all of the case studies, except for the Saami, it is clear that ratification of international human rights instruments of general application in itself does not necessarily translate into the exercise and enjoyment of the right to adequate housing and other rights by indigenous people at the national or local level. That being said, the concluding observations and general comments from the treaty monitoring bodies have provided indigenous peoples with increased legal leverage for their human rights claims.

The ratification of ILO Convention No. 169 has also been important for indigenous peoples. First, indigenous peoples view the ratification of the Convention the only international treaty that specifically protects their specific rights as an important practical, symbolic and good-faith step by their governments. Secondly, in some instances it has provided a legal framework for the drafting of domestic legislations such as in the Philippines and Ecuador.

Thirdly, there may be a more perceptible commitment on the part of these States to engage indigenous peoples and their representative bodies in dialogue
and to develop better laws recognizing indigenous rights.

V.B.2. National laws

In many of the States reviewed for this report, indigenous peoples rights are protected in national constitutions or in Acts specific to indigenous peoples. Some of these Acts include provisions that could be used to protect aspects of the right to adequate housing for indigenous peoples. For example, in Finland, the Saamis rights to land are demarcated in the national Constitution and in the Saami Act. In the Philippines the rights of indigenous peoples are protected in the Constitution and a range of rights are codified in the 1997 Indigenous Peoples Rights Act, informed by ILO Convention No. 169. This Act recognizes the right to land, self-determination and cultural integrity of indigenous peoples and stipulates that indigenous peoples have the right to prior consent before development projects can commence on their lands. In Ecuador, the constitution enshrined indigenous peoples right to communal property land, natural resources, and consultations prior to the implementation of the exploitation of non-renewable resources on their lands. In Canada, the Constitution recognizes rights that exist by way of land claims agreements between the State and indigenous peoples.

Several of the States reviewed in the report have also enshrined the right to adequate housing in their Constitutions, such as in Ecuador, Finland, Norway, the Philippines, the Russian Federation and Sweden. In Australia and Canada, where there is no constitutional recognition of this right, the State purports to implement the right to adequate housing through enabling legislation and policies and programmes specifically on housing. Kenya is in the midst of a constitutional reform process. The draft under consideration at the present time includes recognition of rights of indigenous peoples as well as housing rights. Indigenous peoples in several States have used the courts to enforce their rights. However, overall, it appears that they are not doing so in large numbers.

The results of litigation on issues related to indigenous land and housing rights have been mixed. For example, in Norway, the Supreme Court decided two cases which resulted in the recognition of Saami land rights. In Sweden, the Supreme Court ruled that the Saami have reindeer grazing and fishing rights in a particular mountainous area. In Canada, indigenous tenants challenged the discriminatory comments of a landlord and won. Meanwhile, in Australia, indigenous tenants have challenged State-imposed evictions and discriminatory comments made by a private landlord and have lost. In Ecuador, indigenous peoples have launched numerous cases against companies wanting to exploit oil, and have experienced both victories and losses.

V.C. Housing programmes

The case studies describe a range of different housing programmes, some of which are designed specifically for indigenous peoples, others of which were designed for the general population (but ostensibly can be accessed by indigenous peoples).

The case studies reveal that the most successful programmes and projects are often those that have involved indigenous peoples in meaningful and diverse ways. For example, in Canada, social or public housing that is owned and operated by indigenous peoples and designed in a culturally sensitive manner have proved very popular with indigenous tenants in Canadian cities. In Finland, the Government implemented a loan and grant scheme for the Saami that enables them to build their own houses on their own land and has resulted in high rates of home ownership for the Saami and lower rates of social housing tenancy. In Kenya, Maasai women have been part of a project that enables them to use indigenous skills and materials to redesign existing housing so that it responds more to their needs.

The corollary to these successful projects is that housing programmes and projects are less successful if they are not designed or implemented by indigenous peoples. This was seen in the case of social housing in Western Australia. Housing policies and programmes may also lack success if insufficient resources are allocated to them. For example, in Canada, access to social housing, for indigenous peoples, has been dramatically reduced (along with all low-income Canadians) by the withdrawal of support for social housing by all levels of Government since 1993.

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