Uncontacted peoples: A legal failure

Author: Ross Booth
LLB student, University of KwaZulu-Natal

In the age of antiquity, brilliant minds spoke of lost cities and forbidden regions that lay beyond the edges of the known world. Plato famously wrote of Atlantis – a hyper-advanced civilisation that fell from favour with the Gods and was submerged beneath the sea as a consequence. As the world developed, however, and explorers chartered the unchartered, humans realised that these myths were exactly that – myths. But global expansion revealed other mysteries, and while the ideas of golden cities and sunken empires have faded into fable, lost and isolated tribal groups have certainly existed – and still do to this day.

It is roughly estimated that some 100 tribes still operate in varied isolation worldwide, with the bulk situated in different parts of South America. Having largely resisted outside contact (or contact with neighbouring tribes), these indigenous groups have earned the name “uncontacted peoples” – a term that has sparked interest among tourists and missionaries alike. Acting from curiosity or personal intent, many outsiders have sought to intrude upon isolated communities – with differing outcomes. In some instances, tribal groups have welcomed strangers and allowed them to view and even participate in cultural activities. The Jawara tribe on the Andaman Islands of India, has been known to allow tourists and researchers onto their reservation without trouble – even occasionally sending their children to settlements beyond the reserve to be educated. Other tribes, however, are known to respond to outsiders with aggression and violence. The inhabitants of North Sentinel Island are notable for ferociously resisting outside contact, with two fishermen and an American missionary, John Allen Chau, dying as a consequence of trespassing onto the island.

Despite each particular tribe’s nature, the general consensus of the international community is that they must be universally protected to preserve their customs and ways of life. This has resulted in a string of relatively successful and unsuccessful legal measures at both local and international levels.

It seems that each respective country has tackled the issue of tribal protection differently. For example, in the case of North Sentinel Island, the Indian government has established a no-go-zone within a 5-mile radius of the island to ward off trespassers and overflying aircraft. Where a tribe exists within a landlocked region, such as the Awá in Brazil, reserves have generally been demarcated to preserve their existence and prevent a forced assimilation of tribe members into modernity. The Awa tribe has been particularly affected by outside interference and it is largely on account of international pressure from activist groups that their existence has been ensured. As a tribe of hunter gatherers, they live on the move, but their land has become increasingly smaller as logging companies encroach further into their territory. There are even reports of such companies hiring gunmen (known as pistoleros) to “remove” tribe members who stand in the way of their production. No one is safe from such attacks and even children have been killed at the hands of hired guns.

As a result of the plight faced by indigenous groups, countries in South America have become increasingly aware of the need to protect indigenous groups and have even passed state-binding legislation to achieve this. Brazil, for example, has an established group called FUNAI, which gives effect to tribe-related law and ensures that companies with commercial interests in land occupied by indigenous groups refrain from carrying out their activities. However, in recent years, FUNAI has suffered continuous budget cuts which have hampered its protective abilities. Brazil’s president, Jair Bolsonaro, has also vowed to extensively remove the legal barriers which have protected the Amazon from economic activity – essentially opening up the forest to commercialisation. Mounting factors such as these have increased fears that the days of uncontacted peoples are quite literally numbered.

It is no surprise that much of the current legislation passed regarding tribal protection has been ignored by private companies and individuals with misguided intent or a disregard for the survival of native groups. Dozens of tribal communities are situated on land rich in resources such as oil, gas and trees which have in turn attracted corporations that see isolated groups as mere obstacles in the greater scheme of business.

The casual tourist is no less dangerous than the corporation. Many seeking to satisfy their curiosity have illegally ventured into tribal reserves – often with tragic outcomes. Tourists are occasionally met with aggression from tribal inhabitants, and tragedies are common when the no-go-zones are ignored. However, it is ultimately the tribes themselves who face the most significant threat from outside intrusion. Because they have never come into contact with diseases and illnesses (even as trivial as the common cold), isolated tribes have virtually no immunity thereof. Merely one interaction between an outsider and a tribe member could wipe out half of a tribe’s entire population. In 1987, a first-time interaction between an uncontacted people, the Zo’é, and members of an evangelical missionary group (The New Tribes Mission) exposed the tribe to disease which ran rampant through their community, decimating its population. Their numbers have reportedly since recovered, but the initial loss was gravely unnecessary and could have been easily avoided.

Given the severity of the threat from outsiders, protective legislation (and mechanisms to ensure compliance) is imperative. On the international plane, there are no legal instruments that bind the global community with regards to uncontacted peoples. Even UN declarations such as the 2007 Declaration on the Rights of Indigenous Peoples has failed to place an obligatory duty on countries to protect tribes within their borders. If given effect to, the Declaration would make it almost impossible to force isolated groups into modernity. For example, Article 8.1 of the Declaration states that “Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.” This is echoed in Article 10 which avers that “Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return”. In a perfect world, these provisions would guarantee the continued survival of native peoples – as well as the environment they inhabit. Sadly, however, to the international community, these are mere guidelines with no binding effect.

Many have speculated that the only way uncontacted indigenous groups will survive is through public pressure to demarcate land for them and create mechanisms to prevent outside intrusion. As an example, Colombia maintains armed patrols around tribal reserves – something that could be mirrored in other countries to achieve relative success. However, as it stands, no blanket legal remedy exists to encompass all uncontacted peoples, and until one comes into existence, tribe related legislation and unprotected no-go-zones will likely remain ignored by companies and individuals alike.

The clock is ticking on the survival of uncontacted peoples, and we can only hope that the resounding legal failures in respect of their protection will be remedied before their time runs out.

About the Author

Ross Booth is a third year LLB student at UKZN studying towards currently seeking articles of clerkship for the year of 2022 and hopes to pursue a career in Corporate and Finance Law. He is a member of the UKZN Moot Club, Golden Key Honours Society and represents his class in several academic modules. Outside university, he enjoys athletics and is currently training towards running the Two Oceans in 2021. His interests include foreign affairs, politics and cinema. He is also a huge dog lover with a soft spot for German Shepherds.