EXAMINING THE SELECTIVE BEST PRACTICES OF INDIGENOUS LAND CLAIMS TO REMEDY EXISTING PROLONGED CHT LAND DISPUTE CRISIS

This dissertation is a multi-jurisdictional study on indigenous people’s land claims in the United States, South Africa, Canada, Australia, Brazil including regional and international systems like inter-American court of human rights. It explores the solution for Chittagong Hill Tracts Dispute Resolution Commission (CHT Commission) assessing the practices of selective countries. This thesis examines the federal trust doctrine applicable to Native American’s land regulation with the US federal government and assess how this unique system of land management help resolving the existing relationship with government and the present indigenous land dispute crisis in Chittagong Hill Tracts (CHT) Bangladesh. This study argues that trust doctrine is a helpful tool to govern government-community relationship and to impose liability upon government under certain circumstances. This study also considers the recognition and application of indigenous law or customary law in United States, South Africa, Canada, Australia, and Brazilian land controversy. Here, the work proposes a package of solutions. Like South Africa, formation of investigatory wing including historians, anthropologists and surveyors under Land Commission is a pragmatic approach to facilitate the commission’s functions. Another acceptable solution for CHT Land Commission is taking initiative for demarcating the indigenous land and its natural resources. Bangladesh could follow the South African demarcation process for the protection and development of aboriginal land. The jurisprudences of United States (Indian Claims Commission and Court of Federal Claims), South Africa, Brazil revealed that restoration of indigenous land does not always comes up as a best and practical solution. Rather, restitution to other suitable land and compensation for the lost land reflect as desirable outcomes having assessed the circumstances of each particular case. The factors for determining compensation are modus operandi to help the CHT Land Commission fixing land claims. Lastly, this study explores various international instruments, conventions and recommendations, case-laws, principles of customary law relating to indigenous land claims and its actual application in domestic implementation of CHT land claims. Considering the regional courts, this dissertation sums up that victim centered approach reverberates a panacea that reflects reparatory, restorative as well as communal justice for remedying dispossession. This research explains the ongoing individual and collective property rights violation occurred in Chittagong Hill Tracts (CHT) and the centuries-long stalemates arising out of various adverse projects of government continued between Bangladesh government and indigenous community, particularly Parbatyo Chattagram Jana Sanhati Samity (PCJSS). It addresses how discriminatory colonial and post-colonial policy and legislation gradually encroached CHT indigenous community’s traditional communal lands. In order to find out solutions for indigenous land claim, this study analyses the existing CHT Peace Accord 1997 between government and PCJSS and its aftermath, CHT Land Dispute Settlement Commission Act 2001 to demonstrate its contemporary standoff. It is true that Peace Treaty was a panacea to stabilize two-decade long internal conflicts. But it was unsatisfactory to resolve land disputes that mainly created incessant dispossession of indigenous community from their ancestral land since 1860 when the British annexed CHT to Bengal. This study analyses colonial and post-colonial state policies ignoring indigenous customary rights and the planned gradual settlement of Bengali people on CHT indigenous people’s traditional land under the auspices of government which aggravates the land dispute crisis. The cumulative effects of colonial and post-colonial forest policy created reserved forests, unclassed state forest that deprived CHT indigenous community losing vast majority of forest. Hostile government policy and discriminatory legislation gave rise to mismanagement and nationalization of forests. Against this backdrop, Chittagong Hill Tracts Land Dispute Resolution Commission is here, since its inception, to handle these sensitive and precarious problems. The long twenty-one years of procrastination to settle a single dispute and some discriminatory provisions in CHT Land Dispute Settlement Commission Act ultimately made the Commission a toothless, ineffective forum. Since the Commission has turned into an incompetent institution to settle land issue with government, the formal regulation of indigenous community’s relationship with government becomes a sine qua non to resolve the long-standing cold relationship between these two sections. The dissertation argues that CHT’s process for recognizing indigenous land rights can be informed by the experiences of indigenous peoples in the United States, Australia, Canada, Brazil and South Africa. Specifically, the CHT should adopt the federal trust relationship applicable to land disputes in the United States. Also, the CHT should be informed by the use of customary indigenous law recognized as well as formalized by South Africa. Restoring the ancestral land on the basis of pre-colonial entitlement (customary indigenous law) is a befitting mechanism that was followed by South African Land Claims Court and reflects an effective way out for CHT Land Commission. But this is not the only solution rather empowering the commission with a broad array of jurisdiction, diverse scope of awarding solution, considering no-holds-barred approach are well chosen to resolve the procrastination of CHT Land Commission.

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