• Lessons from the Endorois case and HR standards

The preservation of indigenous cultures is a critical aspect of the global human rights discourse, as these communities embody distinct and unique traditions, languages, ways of life, and cosmovision. Their current needs and development-related aspirations may differ from those of the mainstream population. The Vedda community of Sri Lanka, also known as the Vedda or Wannilaeththo, is one such indigenous group facing challenges in maintaining their cultural distinctiveness amid modernisation and external pressures. 

Recently, the Leader of the indigenous Vedda population, Uruwarige Wannila Aththo announced his intention to pursue legal action (he has filed a complaint with the Criminal Investigations Department) against two comedians over a YouTube programme that allegedly misrepresented the indigenous Vedda community. It was contended that the programme, produced for commercial gain, misrepresented the Vedda community’s language and traditions, thereby undermining their dignity and cultural integrity. This incident highlights the importance of protecting indigenous rights as an integral part of the broader human rights framework and emphasises the need for enhanced measures to protect and promote the cultural heritage of the Vedda people. In this context, the cultural sensitivity and protection of the Vedda community can be done through the lens of international and domestic human rights standards, drawing valuable lessons from other regions. 

The recognition and protection of indigenous communities are essential for ensuring their dignity, identity, and ability to exercise fundamental rights. The Vedda people, like other indigenous communities, have a right to cultural expression, land ownership, economic sustenance, and self-determination. However, historical and contemporary challenges, including displacement, the loss of language, and restricted access to traditional lands, threaten their existence. Addressing these challenges requires a comprehensive legal and policy framework at both the domestic and international levels.

By examining the Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of the Endorois Welfare Council vs. Kenya, 276/2003, a landmark communication by the African Commission on Human and People’s Rights (ACHPR), which set a precedent in recognising indigenous land and cultural rights, we can identify key principles that should be applied to the protection of the Vedda community. The case set out four criteria for identifying indigenous peoples, such as the occupation and use of a specific territory, the voluntary perpetuation of cultural distinctiveness, self-identification as a distinct collectivity, as well as recognition by other groups, and an experience of subjugation, marginalisation, dispossession, exclusion or discrimination. These criteria are essential to safeguard the rights of the Vedda community.

International human rights instruments such as the International Labour Organisation’s (ILO) Indigenous and Tribal Peoples Convention Number 169, and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as well as domestic policies, have a role to play in addressing the challenges faced by the Vedda community. The effective implementation of these standards can ensure the protection and promotion of their rights.

Cultural heritage and challenges

The Vedda people are recognised as Sri Lanka's indigenous inhabitants, with a lineage tracing back to the island's original neolithic community dating from at least 14,000 Before Christ. Traditionally, they were hunter-gatherers residing in the monsoon dry forests, leading a lifestyle intricately linked to their natural environment. Over the centuries, they developed unique cultural practices, including distinct linguistic expressions, social structures, and spiritual beliefs deeply connected to nature.

Despite their historical significance, the Vedda community has experienced substantial disruptions due to colonial interventions, deforestation, and modernisation. The British colonial administration implemented land policies that marginalised indigenous populations, while post-Independence development projects continued to encroach upon their traditional lands. Today, many Vedda have been forced into assimilation with the dominant Sinhala and Tamil communities, leading to a gradual loss of their linguistic and cultural identity.

One of the most significant challenges faced by the Vedda is restricted access to their ancestral lands. Large-scale agricultural projects, conservation efforts, and urbanisation have resulted in the displacement of many Vedda families. Without access to the forests that sustain their traditional practices, including hunting and foraging, they have been compelled to adapt to livelihoods that do not align with their cultural heritage. This has created economic hardships and a loss of traditional knowledge. The indigenous peoples have been identified as a unique group whose ‘social, cultural and economic characteristics are different from other sections of the national community, particularly because of their special relationship with their ancestral territories, and because they regulate themselves, at least partially, by their own norms, customs, and/or traditions’.

Furthermore, the Vedda community has limited political representation, making it difficult for them to advocate for their rights effectively. Unlike other recognised ethnic groups in Sri Lanka, the Vedda do not have significant institutional support to protect their interests. Without legal recognition and affirmative policies, they remain vulnerable to further marginalisation and cultural erosion.

The Endorois case: A landmark in indigenous rights

The Endorois community in Kenya provides a pertinent case study in indigenous rights protection. In the 1970s, the Endorois were evicted from their ancestral lands around Lake Bogoria to create a game reserve, leading to the loss of their traditional lands and livelihoods. After exhausting domestic legal avenues, the community, supported by organisations like the Centre for Minority Rights Development and Minority Rights Group International, brought their case to the ACHPR.

The ACHPR ruled in favour of the Endorois, recognising violations of several rights under the African Charter, including the right to property, culture, religion, and development. This ruling was significant as it was one of the first international legal recognitions of indigenous land rights in Africa. The decision underscored the importance of respecting the traditional territories of indigenous communities and ensuring their participation in decisions affecting their lands.

The Endorois case also emphasised that indigenous peoples have the right to benefit from the natural resources found on their lands. This principle is particularly relevant to the Vedda community, whose traditional way of life is dependent on forest resources. The ruling established that Governments must seek free, prior, and informed consent from indigenous communities before undertaking projects that affect their lands.

Additionally, the case reinforced the need for reparations and the restoration of land rights for displaced indigenous peoples. The ACHPR recommended that the Kenyan Government return the Endorois' ancestral lands, provide compensation for losses, and implement mechanisms to prevent future violations. These measures set a precedent that can guide Sri Lanka in addressing similar challenges faced by the Vedda community.

Int’l and domestic HR standards

Internationally, instruments such as the UNDRIP and ILO 169 outline the rights of indigenous peoples, including land rights, cultural preservation, and self-determination. These frameworks establish legal obligations for Governments to protect indigenous communities and ensure their participation in governance and development.

While Sri Lanka has not ratified ILO 169, the principles enshrined in these instruments provide a framework for protecting indigenous communities like the Vedda. The Government can adopt policies that align with international standards, including the legal recognition of indigenous land ownership, the protection of cultural heritage, and inclusion in decision-making processes.

Domestically, the Human Rights Commission of Sri Lanka is mandated to promote and protect human rights, including those of indigenous peoples. However, there are currently no specific legal provisions in Sri Lanka that explicitly recognise the Vedda as an indigenous community with distinct rights. Advocacy for policy changes and legal recognition is crucial in ensuring that their rights are upheld.

The Sri Lankan Constitution guarantees fundamental rights such as equality before the law and the freedom of expression. However, without specific legal provisions addressing indigenous rights, the Vedda community continues to face challenges in securing their cultural and land rights. Implementing affirmative action policies, land restitution programs, and cultural preservation initiatives can help bridge this gap.

Conclusion

The protection of the Vedda community’s cultural distinctiveness requires a concerted effort grounded in both international and domestic human rights standards. The Endorois case serves as a valuable precedent, illustrating the importance of recognising indigenous communities’ rights to their ancestral lands, cultural practices, and self-determination. By applying similar criteria and upholding the principles enshrined in international instruments, Sri Lanka can ensure the protection and flourishing of the Vedda community’s unique heritage for future generations.

Recognising the rights of the Vedda people is not merely an act of cultural preservation; it is a legal and moral obligation. Efforts to secure their rights should include land restitution, legal recognition, economic support, and policies promoting their linguistic and cultural identity. By adopting a rights-based approach, Sri Lanka can demonstrate its commitment to diversity, inclusion, and justice for all communities, ensuring that the Vedda continue to thrive in their ancestral homeland.

(Galappaththige is a Senior Law lecturer attached to the Colombo University. Thilakarathna is a Law lecturer attached to the same university)

……………………………………………………

The views and opinions expressed in this article are those of the authors, and do not necessarily reflect those of this publication