Indigenous land rights

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Indigenous land rights are the rights of Indigenous peoples to land and natural resources therein, either individually or collectively, mostly in colonised countries. Land and resource-related rights are of fundamental importance to Indigenous peoples for a range of reasons, including: the religious significance of the land, self-determination, identity, and economic factors. [1] Land is a major economic asset, and in some Indigenous societies, using natural resources of land and sea form the basis of their household economy, so the demand for ownership derives from the need to ensure their access to these resources. Land can also be an important instrument of inheritance or a symbol of social status. In many Indigenous societies, such as among the many Aboriginal Australian peoples, the land is an essential part of their spirituality and belief systems.

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Indigenous land claims have been addressed with varying degrees of success on the national and international level since the very beginning of colonisation. Such claims may be based upon the principles of international law, treaties, common law, or domestic constitutions or legislation. Aboriginal title (also known as Indigenous title, native title and other terms) is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. Statutory recognition and protection of Indigenous and community land rights continues to be a major challenge, with the gap between formally recognized and customarily held and managed land is a significant source of underdevelopment, conflict, and environmental degradation. [2]

International law

Indigenous land rights have historically been undermined by a variety of doctrines such as terra nullius . [3]

The foundational documents for Indigenous land rights in international law include the Indigenous and Tribal Peoples Convention, 1989 ("ILO 169"), the United Nations Declaration on the Rights of Indigenous Peoples, the Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the American Convention on Human Rights, and the American Declaration on the Rights of Indigenous Peoples.

China

Middle East

Common law

Aboriginal title, also known as native title (Australia), customary title (New Zealand), original Indian title (US), is the common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty. Indigenous peoples may also have certain rights on Crown land in many jurisdictions.

Australia

Canada

The leading case for Aboriginal title in Canada is Delgamuukw v. British Columbia (1997). Another important case for Aboriginal title is the Tsilhqot'in Nation v. British Columbia (2014).

Latin America

As the political systems of some Latin American countries are now becoming more democratic and open to listening and embracing the views of minorities these issues of land rights have clearly come up to the surface of the political life. Despite this new “re-recognition” bit by bit, the indigenous groups are still among the poorest populations of the countries and they often have less access to resources and they have lesser opportunities for progress and development. The legal situation of Indigenous land rights in the countries of Latin America is highly varied. There is still a very broad variation of Indigenous rights, laws and recognition throughout the whole continent. In the year 1957, the International Labour Organization(ILO), made the ILO Convention 107. This convention created laws and norms for the protection and integration of Indigenous peoples in independent countries. All the independent countries of Latin America and the Caribbean of that time ratified this convention. Since the 1960s they started with the recognition of the first Indigenous land claims since the colonial era. In the year 1989 the ILO made the Convention 169; the convention concerning Indigenous and Tribal Peoples in Independent Countries, which updates the ILO 107 of 1957. In this convention was also the recognition of the very close and important relationship between land and identity, or cultural identity very important. Today, this convention has been ratified by 15 Latin American and Caribbean countries.

New Zealand

Indigenous land rights were recognised in the Treaty of Waitangi made between the British Crown and various Māori chiefs. The Treaty itself has often been ignored, but New Zealand courts have usually accepted the existence of native title. Controversies over Indigenous land rights have tended to revolve around the means by which Māori lost ownership, rather than whether they had ownership in the first place.

United States

"Next to shooting indigenous peoples, the surest way to kill us is to separate us from our part of the Earth."

Hayden Burgess, Hawaii [4]

The foundational decision for Aboriginal title in the United States is Johnson v. McIntosh (1823), authored by Chief Justice John Marshall.

Native Americans in the United States have largely been relegated to Indian reservations managed by tribes under the United States Department of the Interior's Bureau of Indian Affairs.

Civil law

Brazil

Mexico

The years after the Mexican Revolution of 1910 saw agrarian reforms (1917–1934), and in article 27 of the Mexican Constitution the encomienda system was abolished, and the right to communal land for traditional communities was affirmed. Thus the ejido-system was created, which in practice should comprise the power of private investments by foreign corporations and absentee landlords, and entitled the indigenous population to a piece of land to work and live on.
Since the 1980s and 1990s the focus of Mexico's economic policy concentrated more on industrial development and attracting foreign capital. The Salinas government initiated a process of privatization of land (through the PROCEDE-program). In 1992, as a (pre)condition for Mexico for entering the North American Free Trade Agreement (NAFTA) with the US and Canada, art.4 and art.27 of the Constitution were modified, by means of which it became possible to privatize communal ejido-land. This undermined the basic security of Indigenous communities to land entitlement, and former ejidatorios now became formally illegal land-squatters, and their communities informal settlements. (see also the Chiapas conflict)

Customary law

See also

Related Research Articles

International human rights instruments are the treaties and other international texts that serve as legal sources for international human rights law and the protection of human rights in general. There are many varying types, but most can be classified into two broad categories: declarations, adopted by bodies such as the United Nations General Assembly, which are by nature declaratory, so not legally-binding although they may be politically authoritative and very well-respected soft law;, and often express guiding principles; and conventions that are multi-party treaties that are designed to become legally binding, usually include prescriptive and very specific language, and usually are concluded by a long procedure that frequently requires ratification by each states' legislature. Lesser known are some "recommendations" which are similar to conventions in being multilaterally agreed, yet cannot be ratified, and serve to set common standards. There may also be administrative guidelines that are agreed multilaterally by states, as well as the statutes of tribunals or other institutions. A specific prescription or principle from any of these various international instruments can, over time, attain the status of customary international law whether it is specifically accepted by a state or not, just because it is well-recognized and followed over a sufficiently long time.

Indigenous peoples Ethnic groups descended from and identified with the original inhabitants of a given region

Indigenous peoples, also referred to as First peoples, Aboriginal peoples, Native peoples, or autochthonous peoples, are ethnic groups who are native to a particular place on Earth and live or lived in an interconnected relationship with the natural environment there for many generations prior to the arrival of non-Indigenous peoples. Indigenous first emerged as a way for Europeans to differentiate enslaved black people from the indigenous peoples of the Americas, being first used in its modern context in 1646 by Sir Thomas Browne, who stated "Although... there bee... swarms of Negroes serving the Spaniard, yet they were all transported from Africa... and are not indigenous or proper natives of America."

Ejido

An ejido is an area of communal land used for agriculture in which community members have usufruct rights rather than ownership rights to land, which in Mexico is held by the Mexican state. People awarded ejidos in the modern era farm them individually in parcels and collectively maintain communal holdings with government oversight. Although the system of ejidos was based on an understanding of the preconquest Aztec calpulli and the medieval Spanish ejido, in the twentieth century ejidos are government controlled. After the Mexican Revolution, ejidos were created by the Mexican state to grant lands to peasant communities as a means to stem social unrest. The awarding of ejidos made peasants dependent on the government, with the creation of a bureaucracy to register and regulate them through the National Agrarian Registry. As Mexico prepared to enter the North American Free Trade Agreement in 1991, President Carlos Salinas de Gortari declared the end of awarding ejidos and allowed existing ejidos to be rented or sold, ending land reform in Mexico.

Traditional knowledge, indigenous knowledge and local knowledge generally refer to knowledge systems embedded in the cultural traditions of regional, indigenous, or local communities. Traditional knowledge includes types of knowledge about traditional technologies of subsistence, midwifery, ethnobotany and ecological knowledge, traditional medicine, celestial navigation, craft skills, ethnoastronomy, climate, and others. These kinds of knowledge, crucial for subsistence and survival, are generally based on accumulations of empirical observation and on interaction with the environment.

Indigenous and Tribal Populations Convention, 1957

Indigenous and Tribal Populations Convention, 1957 is an International Labour Organization Convention within the United Nations that was established in 1957. Its primary focus is to recognize and protect the cultural, religious, civil and social rights of indigenous and tribal populations within an independent country, and to provide a standard framework for addressing the economic issues that many of these groups face.

The Indigenous and Tribal Peoples Convention, 1989 is an International Labour Organization Convention, also known as ILO-convention 169, or C169. It is the major binding international convention concerning indigenous peoples and tribal peoples, and a forerunner of the Declaration on the Rights of Indigenous Peoples.

Discovery doctrine Concept of public international law

The discovery doctrine, also called doctrine of discovery, provided a philosophical framework for Christian explorers, to lay claim to territories uninhabited by Christians. Under this belief, title to lands lay with the government whose subjects travelled to and occupied a territory whose inhabitants were not subjects of a European Christian monarch. The doctrine was strongly held by King Ferdinand and Queen Isabella of Spain who financed Columbus' first expedition to America. The Spanish monarchs were strongly backed on this by Pope Alexander VI, who confirmed their right of possession of all newly discovered lands in the Americas. He repeated what had been said by earlier Popes such as Nicholas V. As described by the Upstander Project,

Two papal bulls, in particular, stand out: (1) Pope Nicholas V issued "Romanus Pontifex" in 1455, granting the Portuguese a monopoly of trade with Africa and authorizing the enslavement of local people; (2) Pope Alexander VI issued the Papal Bull “Inter Caetera” in 1493 to justify Christian European explorers’ claims on land and waterways they allegedly discovered, and promote Christian domination and superiority, and has been applied in Africa, Asia, Australia, New Zealand, and the Americas. The 1493 Papal decree aimed to justify Christian European explorers’ claims on land and waterways they allegedly discovered, and promote Christian domination and superiority, and has been applied in Africa, Asia, Australia, New Zealand, and the Americas. If an explorer proclaims to have discovered the land in the name of a Christian European monarch, plants a flag in its soil, and reports his “discovery” to the European rulers and returns to occupy it, the land is now his, even if someone else was there first.

Paul McHugh is a New Zealand academic lawyer. He teaches at the University of Cambridge where he is a Professor in Law and Legal History and Fellow of Sidney Sussex College.

Aboriginal title Concept in common law of indigenous land rights persisting after colonization

Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary significantly by jurisdiction. Nearly all jurisdictions are in agreement that aboriginal title is inalienable, and that it may be held either individually or collectively.

Customary land is land which is owned by indigenous communities and administered in accordance with their customs, as opposed to statutory tenure usually introduced during the colonial periods. Common ownership is one form of customary land ownership.

The Declaration on the Rights of Indigenous Peoples is a non-legally-binding resolution passed by the United Nations in 2007. It delineates and defines the individual and collective rights of Indigenous peoples, including their ownership rights to cultural and ceremonial expression, identity, language, employment, health, education and other issues. It "emphasizes the rights of Indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations". It "prohibits discrimination against indigenous peoples", and it "promotes their full and effective participation in all matters that concern them and their right to remain distinct and to pursue their own visions of economic and social development".

Indigenous people under the nation-state have experienced exclusion and dispossession. With the rise in globalization, material advantages for indigenous populations have diminished. At times, national governments have negotiated natural resources without taking into account whether or not these resources exist on indigenous lands. In this sense for many indigenous populations, the effects of globalization mirror the effects of the conquest in the mid 16th century.

Indigenous intellectual property is an umbrella legal term used in national and international forums to identify indigenous peoples' claims of collective intellectual property rights to protect specific cultural knowledge of their groups. It is a concept that has developed as an analog to predominantly western concepts of intellectual property law, and has most recently been promoted by the World Intellectual Property Organization, as part of a broader effort by the United Nations to see the world's indigenous, intangible cultural heritage better valued and better protected against perceived, ongoing mistreatment.

Indigenous rights Legal, social, or ethical principles that pertain to Indigenous Peoples

Indigenous rights are those rights that exist in recognition of the specific condition of the indigenous peoples. This includes not only the most basic human rights of physical survival and integrity, but also the rights over their land, language, religion, and other elements of cultural heritage that are a part of their existence and identity as a people. This can be used as an expression for advocacy of social organizations, or form a part of the national law in establishing the relation between a government and the right of self-determination among its indigenous people, or in international law as a protection against violation of indigenous rights by actions of governments or groups of private interests.

Aboriginal child protection describes services designed specifically for protection of the children of "aboriginal" or indigenous peoples, particularly where these peoples are a minority within a country. They may differ at international, national, legal, cultural, social, professional and program levels from general or mainstream child protection services. Fundamental human rights are a source of many of the differences. Aboriginal child protection may be an integral or a distinct aspect of mainstream services or it may be exercised formally or informally by an aboriginal people itself. There has been controversy about systemic genocide in child protection systems enforced with aboriginal children in post-colonial societies.

Pan-Indianism is a philosophical and political approach promoting unity, and to some extent cultural homogenization, among different Native American, First Nations, Inuit and Métis (FNIM) groups in the Americas regardless of tribal distinctions and cultural differences.

Indigenous People's Rights Act of 1997 (IPRA) is a legislation that recognize and promote all the rights of Indigenous Cultural Communities/Indigenous Peoples of the Philippines

Ancestral domain or ancestral lands refers to the lands, territories and resources of indigenous peoples, particularly in the Asia-Pacific region. The term differs from indigenous land rights, Aboriginal title or Native Title by directly indicating relationship to land based on ancestry, while domain indicates relationships beyond material lands and territories, including spiritual and cultural aspects that may not be acknowledged in land titles and legal doctrine about trading ownership.

The aim of free, prior and informed consent (FPIC) is to establish bottom-up participation and consultation of an indigenous population prior to the beginning of development on ancestral land or using resources within the indigenous population's territory. Indigenous people have a special connection to their land and resources, and they inhabit one-fifth of the earth's surface. These areas are environmentally rich in both renewable and non-renewable resources. The collective ownership style of most indigenous peoples conflicts with the modern global market and its continuous need for resources and land. To protect indigenous peoples rights, international human rights law has created processes and standards to safeguard their way of life and to encourage participation in the decision-making process. One of these methods is the process of FPIC. There is criticism that many international conventions and treaties only require consultation and not consent, which is a much higher threshold. Without the requirement for consent, indigenous people are not able to veto government projects and developments in their area, which directly affects their lives and cultures. FPIC allows indigenous peoples to have the right to self-determination and self-governance in national and local government decision-making processes over projects that concern their lives and resources.

Indigenous or Aboriginal self-government refers to proposals to give governments representing the Indigenous peoples in Canada greater powers of government. These proposals range from giving Aboriginal governments powers similar to that of local governments in Canada to demands that Indigenous governments be recognized as sovereign, and capable of "nation-to-nation" negotiations as legal equals to the Crown, as well as many other variations.

References

  1. Bouma; et al. (2010). Religious Diversity in Southeast Asia and the Pacific: National Case Studies. Springer.
  2. "Indigenous & Community Land Rights". Land Portal. Land Portal Foundation. Retrieved 22 June 2017.
  3. Gilbert, Jérémie. (2006). Indigenous peoples' land rights under international law : from victims to actors. Ardsley, NY: Transnational Publishers. ISBN   978-90-474-3130-5. OCLC   719377481.
  4. Eede, Joanna (2009). We are One: A Celebration of Tribal Peoples. Quadrille Publishing. ISBN   1-84400-729-4.

Bibliography