Indigenous land rights

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Indigenous land rights are the rights of indigenous peoples to land, either individually or collectively. 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. The majority of indigenous peoples living in forest areas depend on the natural resources of their lands to fulfill their subsistence needs. Hunting, fishing, gathering of forest products, and small garden plots still form the basis of their household economy. The security and permanence of their control and use of the natural resource base is actually more important to most indigenous groups than direct ownership of the land itself.[ citation needed ] The demand for ownership, in fact, derives from the need to ensure their access to these resources, so it is of particular importance to examine how the different national-level legal regimes handle this aspect of indigenous ownership. Land is also an important instrument of inheritance and it is a symbol of social status. The land is essential for people's spiritual development. The land is sacred and everything they get from the land is a gift from their gods. Losing their land means a loss of contact with the earth and a loss of identity. Land is not only an asset with economic and financial value, but also a very important part of people's lives, worldviews and belief systems.

Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory. Rights are of essential importance in such disciplines as law and ethics, especially theories of justice and deontology.

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

Indigenous peoples, also known as First peoples, Aboriginal peoples or Native peoples, are ethnic groups who are the original owners and caretakers of a given region, in contrast to groups that have settled, occupied or colonized the area more recently. Groups are usually described as indigenous when they maintain traditions or other aspects of an early culture that is associated with a given region. Not all indigenous peoples share this characteristic, as many have adopted substantial elements of a colonizing culture, such as dress, religion or language. Indigenous peoples may be settled in a given region (sedentary) or exhibit a nomadic lifestyle across a large territory, but they are generally historically associated with a specific territory on which they depend. Indigenous societies are found in every inhabited climate zone and continent of the world.

Land law is the form of law that deals with the rights to use, alienate, or exclude others from land. In many jurisdictions, these kinds of property are referred to as real estate or real property, as distinct from personal property. Land use agreements, including renting, are an important intersection of property and contract law. Encumbrance on the land rights of one, such as an easement, may constitute the land rights of another. Mineral rights and water rights are closely linked, and often interrelated concepts.

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Indigenous land claims have been addressed, with varying degrees of success on the national and international level, since colonization. Such claims may be based upon the principles of international law, treaties, common law, or domestic constitutions or legislation. 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]

Land claim Legal declaration of desired control over an area

A land claim is a legal declaration of desired control over areas of property, including bodies of water. The phrase is usually only used with respect to disputed or unresolved land claims. Some types of land claims include aboriginal land claims, Antarctic land claims, and post-colonial land claims.

Colonization is a process by which a central system of power dominates the surrounding land and its components.

International law Regulations governing international relations

International law, also known as public international law and law of nations, is the set of rules, norms, and standards generally accepted in relations between nations. It establishes normative guidelines and a common conceptual framework for states to follow across a broad range of domains, including war, diplomacy, trade, and human rights. International law thus provides a mean for states to practice more stable, consistent, and organized international relations.

International law

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

Terra nullius is a Latin expression meaning "nobody's land", and was a principle sometimes used in international law to justify claims that territory may be acquired by a state's occupation of it.

The foundational documents for indigenous land rights in international law include Indigenous and Tribal Peoples Convention, 1989 ("ILO 169"), the 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, and the American Convention on Human Rights.

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.

International Labour Organization Specialised agency of the United Nations

The International Labour Organization (ILO) is a United Nations agency whose mandate is to advance social justice and promote decent work by setting international labour standards. It was the first specialised agency of the UN. The ILO has 187 member states: 186 of the 193 UN member states plus the Cook Islands are members of the ILO. The tripartite structure is unique to the ILO where representatives from the government, employers and employees openly debate and create labour standards.

The United NationsDeclaration on the Rights of Indigenous Peoples 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".

China

Common law

Aboriginal title 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.

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.

Common law Law developed by judges

In law, common law is the body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

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.

Australia

Canada

The leading case for aboriginal title in Canada is Delgamuukw v. British Columbia (1997).

Canada Country in North America

Canada is a country in the northern part of North America. Its ten provinces and three territories extend from the Atlantic to the Pacific and northward into the Arctic Ocean, covering 9.98 million square kilometres, making it the world's second-largest country by total area. Its southern border with the United States, stretching some 8,891 kilometres (5,525 mi), is the world's longest bi-national land border. Canada's capital is Ottawa, and its three largest metropolitan areas are Toronto, Montreal, and Vancouver.

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 [3]

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

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Canadian Aboriginal law is the body of Canadian law that concerns a variety of issues related to Indigenous peoples in Canada. Thus, Canadian Aboriginal Law is different from Indigenous Law. In Canada, Indigenous Law refers to the legal traditions, customs, and practices of Indigenous peoples and groups. Canadian Aboriginal law provides certain Constitutionally recognized rights to land and traditional practices. Aboriginal is a term used in the Constitution of Canada and includes First Nations, Inuit and Métis people. Canadian Aboriginal Law enforces and interprets certain treaties between the government and Indigenous people, and manages much of their interaction. A major area of Aboriginal law involves the duty to consult and accommodate.

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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 preservation of their land, language, religion, and other elements of cultural heritage that are a part of their existence 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 the indigenous people living within the borders of Canada, or in international law as a protection against violation of indigenous rights by actions of governments or groups of private interests.

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Pan-Indigenousism, formerly Pan-Indianism, is a philosophy and movement promoting unity among different Indigenous American groups in the Americas regardless of tribal or local affiliations. Some academics use the term pan-Amerindianism to distinguish from other territories called Indian. The movement is largely associated with Native Americans in the Continental United States, but has spread to other indigenous groups as well. A parallel growth of the concept has occurred in Alaska and Canada. There, however, other indigenous people, such as the Inuit and the Métis are often included in a wider rubric, sometimes called pan-Aboriginal or some variation thereof.

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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. Eede, Joanna (2009). We are One: A Celebration of Tribal Peoples. Quadrille Publishing. ISBN   1-84400-729-4.

Bibliography