Indigenous land rights

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Indigenous land rights are the rights of Indigenous peoples to land, either individually or collectively 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.

Contents

Indigenous land claims have been addressed with varying degrees of success on the national and international level since 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 .

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.

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 [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

See also

Related Research Articles

<i>Mabo v Queensland (No 2)</i> 1992 High Court of Australia decision which overturned "terra nullius" and recognised native title

Mabo v Queensland is an important decision of the High Court of Australia. The decision is notable for having recognised that some Indigenous Australians have proprietary rights to land, in a legal form of ownership later referred to as "native title".

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

Indigenous peoples, also known in some regions as First peoples, First Nations, Aboriginal peoples or Native peoples or autochthonous peoples, are ethnic groups who are the original or earliest known inhabitants of an area, 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 except Antarctica.

Native title is the designation given to the common law doctrine of Aboriginal title in Australia, which is the recognition by Australian law that Indigenous Australians have rights and interests to their land that derive from their traditional laws and customs. The concept recognises that in certain cases there was and is a continued beneficial legal interest in land held by Indigenous peoples which survived the acquisition of radical title to the land by the Crown at the time of sovereignty. Native title can co-exist with non-Aboriginal proprietary rights and in some cases different Aboriginal groups can exercise their native title over the same land.

Johnson v. M'Intosh, 21 U.S. 543 (1823), is a landmark decision of the U.S. Supreme Court that held that private citizens could not purchase lands from Native Americans. As the facts were recited by Chief Justice John Marshall, the successor in interest to a private purchase from the Piankeshaw attempted to maintain an action of ejectment against the holder of a federal land patent.

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.

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, is a concept of public international law expounded by the United States Supreme Court in a series of decisions, most notably Johnson v. M'Intosh in 1823. Chief Justice John Marshall explained and applied the way that colonial powers laid claim to lands belonging to foreign sovereign nations during the Age of Discovery. Under it, 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 has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of colonial or post-colonial governments.

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.

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.

The Indigenous Law Centre, part of the Law Faculty at the University of New South Wales develops and coordinates research, teaching and information services in the multi-disciplinary area of Indigenous peoples and the law. The Centre publishes two major journals the Australian Indigenous Law Review and the Indigenous Law Bulletin.

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.

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 (IP) have a special connection to their land and resources, and they inhabit 20% 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. Eede, Joanna (2009). We are One: A Celebration of Tribal Peoples. Quadrille Publishing. ISBN   1-84400-729-4.

Bibliography