Indigenous peoples and their relationship to land
CONTENTS
Paragraphs Page
Preface ................................................................................................................................. 3
Introduction ............................................................................................ 1 - 10 4
I. RELATIONSHIP OF INDIGENOUS PEOPLES TO
THEIR
LANDS,
TERRITORIES AND RESOURCES.......................... 11 - 19 6
II. HISTORY AND BACKGROUND: IMPACT OF THE
DOCTRINES
OF DISPOSSESSION ......................................... 20 - 31 9
III. FRAMEWORK FOR THE ANALYSIS OF CONTEMPORARY
PROBLEMS
REGARDING INDIGENOUS LAND RIGHTS. 32 - 83 12
IV. ENDEAVOURS TO RESOLVE INDIGENOUS LAND
ISSUES
AND PROBLEMS......................................................... 84 - 113 26
V. CONCLUSIONS.......................................................................... 114 - 139 35
VI. RECOMMENDATIONS............................................................. 140 - 159 38
Annex: Relevant
legal standards and materials concerning indigenous
lands and resources................................................................................................ 49
Bibliography............................................................................................................ 62
Cases.............................................................................................................................. 72
Preface
This
final working paper has been prepared on the basis of the preliminary working
paper (E/CN.4/Sub.2/1997/17 and Corr.1), the suggestions and information
received from Governments, indigenous peoples, intergovernmental organizations
and non‑governmental organizations, and the first and second progress reports
on the revised preliminary working paper (E/CN.4/Sub.2/1998/15 and
E/CN.4/Sub.2/1999/18).
The
suggestions, comments and other useful data provided by the Government of
New Zealand and by a number of indigenous organizations and
non-governmental organizations have been gratefully received and have been
included in or taken into consideration in the preparation of the final
report. The submissions received in
response to the progress reports are noted in paragraph 7 below.
The
Special Rapporteur recommends and requests warmly that the present final
working paper be circulated to Governments, indigenous peoples, specialized
agencies, intergovernmental
organizations and non‑governmental organizations
concerned, with a request for relevant suggestions, comments and additional
recent data. She recommends, also, that,
in the light of any relevant reply or with any necessary addition or
constructive proposal, this final working paper, be submitted to the Sub‑Commission
on the Promotion and Protection of Human Rights for its final consideration at
its fifty‑third session in 2001.
Introduction
1. In its
decision 1997/114 of 11 April 1997, the Commission on Human Rights, taking note
of resolution 1996/38 of 29 August 1996 of the Sub‑Commission approved the
appointment of Mrs. Erica‑Irene A. Daes as Special Rapporteur to prepare a
working paper on indigenous people and their relationship to land with a view
to suggesting practical measures to address ongoing problems in that regard.
2. In
accordance with this decision, and on the basis of her previous working paper
(E/CN.4/Sub.2/1996/40), the Special Rapporteur prepared a preliminary working
paper (E/CN.4/Sub.2/1997/17 and Corr.1), examining the problems which exist
regarding indigenous land issues, with a view to contributing to increased
understanding between indigenous peoples and States concerning land issues,
providing information and analysis that could contribute to the just resolution
of these issues, and facilitating understanding of the provisions relevant to
land rights contained in the draft United Nations declaration on the rights of
indigenous peoples (Sub‑Commission resolution 1994/45, annex). Attention was also given to identifying and
examining practical measures to address ongoing problems relating to indigenous
peoples and land.
3. At its
forty‑ninth session, in its resolution 1997/12, the Sub‑Commission requested
the Secretary‑General to transmit the preliminary working paper to Governments,
indigenous peoples and intergovernmental and non‑governmental organizations, as
soon as possible, for their comments and suggestions and requested the Special
Rapporteur to prepare her final working paper on the basis of comments and
information received from Governments, indigenous peoples and others and to
submit it to the Working Group on Indigenous Populations at its sixteenth
session and to the Sub‑Commission at its fiftieth session. In March 1998, the secretariat solicited
comments and suggestions from certain Governments, indigenous peoples and
others.
4. Owing
perhaps to the shortness of time, few responses, comments or other submissions
were received. Only four States
responded. They provided excellent and
very helpful information, analysis and criticism of the preliminary working
paper. Eleven indigenous peoples’
organizations or organizations associated with indigenous peoples responded,
some with extensive and useful information.
Because so few replies were received and because those responses were
received at a late date, it was impossible to prepare the final working paper
based upon the comments and suggestions received.
5. The
Special Rapporteur submitted a progress report on the working paper to the Sub‑Commission
at its fiftieth session (E/CN.4/Sub.2/1998/15), in which she particularly
requested that States provide information and analysis concerning the interests
and needs of States in relation to the subject of indigenous land rights, and
she encouraged States, indigenous peoples and others to submit further
information relevant to the working paper.
In its resolution 1998/21, the Sub‑Commission requested the
Secretary‑General to transmit the progress report to Governments, indigenous
peoples and intergovernmental and non‑governmental organizations for their
comments, data and suggestions, and requested the
Special Rapporteur to prepare her final working paper
on the basis of the comments and information received. The progress report was transmitted under
cover of a letter dated 4 November 1998, in which comments, data
and suggestions were requested.
6. The
second progress report on the working paper E/CN.4/Sub.2/1999/18 was submitted
to the Sub‑Commission at its fifty‑first session along with the revised
preliminary working paper. In its
resolution 1999/21 of 26 August 1999, the Sub-Commission
requested the Secretary-General to circulate the second progress report as soon
as possible to Governments, indigenous peoples and intergovernmental and non‑governmental
organizations for their comments, data and suggestions; and the Sub-Commission
requested the Special Rapporteur to prepare her final working paper on the
basis of the comments and information received from Governments, indigenous
peoples and others and to submit it to the Working Group on Indigenous
Populations at its eighteenth session and to the Sub‑Commission for its
consideration at its fifty‑second session.
7. Information
relevant to the preparation of the final working paper was gratefully received
by the Special Rapporteur from the Government of New Zealand. In addition, helpful submissions were
received from:
Interior
Alliance and Union of British Columbia Indian Chiefs (Canada);
Montagnard
Foundation, Inc. (United States);
Mauken
Reindeer Herding District (Norway);
Sámediggi
Ministry of Foreign Affairs (Norway);
Office
of Treaty Settlements (New Zealand);
Nga
Kaiwhakamarama I Nga Ture (Maori Legal Service Inc.) (New Zealand);
Canadian
Friends Service Committee, Quaker Aboriginal Affairs Committee (Canada);
Indian
Law Resource Center (United States).
The Special Rapporteur expresses her sincere
appreciation to all of those States, indigenous peoples and intergovernmental
and non‑governmental organizations that have submitted information and
suggestions relevant to the working paper in response to this and earlier
requests for information.
8. Reports
and statements by indigenous peoples from all parts of the world during
sessions of the Working Group on Indigenous Populations and information
received in the preparation of the working paper have made it clear that land
and resource issues, particularly the dispossession of indigenous peoples from
their lands, are issues of the most urgent and fundamental nature. At the same time, there has been great
concern on the part of certain States, academic institutions, non‑governmental
organizations (NGOs) and individuals that the recognition of the human rights
of indigenous peoples would supposedly require that all the lands and resources
ever taken from indigenous peoples be returned.
Because of the diversity of their history and of the political
relationships and developments relating to the many indigenous peoples
worldwide, and the diverse past and present legal issues, such matters will
have to be reviewed on a case‑by‑case basis, if possible by both indigenous
peoples and States, in order to resolve issues of the land rights of indigenous
peoples. This matter is addressed in
section III below.
9. There
are an enormous number of problems and issues relating to indigenous land
rights, so many that no study or paper could give them all full consideration
within the time‑frame allowed for this initiative. Any attempt to deal with all of the land and
resource issues would necessarily be superficial and lengthy. The better course, adopted here, is to sort
and organize the multitude of issues into an analytical framework and to
attempt to identify those issues or problems which are the most fundamental or
most severe and, of these, the most deserving of attention in the search for
means of alleviating the suffering and injustices endured by indigenous
peoples.
10. What
core values should guide our judgement in this work? First, the great human rights principles
embodied in the Universal Declaration of Human Rights and the International
Covenants on Human Rights, particularly the principles of equality and
self-determination and the prohibition of discrimination. In addition, we must be guided by the
fundamental values and interests that form the foundation of the draft United
Nations declaration on the rights of indigenous peoples: among others, the preservation and well‑being
of indigenous cultures and communities, the elimination of poverty and
deprivation among indigenous peoples, and the great goals of equality before
the law and justice for indigenous peoples and all peoples. The relevant portions of the Universal
Declaration, the International Covenants on Human Rights, International Labour
Organization Convention No. 169 concerning Indigenous and Tribal Peoples
in Independent Countries, and other relevant international and regional human
rights instruments are taken into consideration and are set out in the annex to
the present final working paper. The
Special Rapporteur also calls attention to concerns expressed in the preambular
paragraphs of Sub‑Commission resolution 1998/21, in which the Special
Rapporteur was requested to prepare the present final working paper.[1] It is in this context that the members of the
Sub‑Commission, of the Commission on Human Rights and of other
United Nations bodies, specialized agencies, States, indigenous peoples,
academic institutions, non‑governmental organizations and individuals concerned
are requested to read, consider and comment upon this working paper.
I. RELATIONSHIP
OF INDIGENOUS PEOPLES TO THEIR LANDS,
TERRITORIES AND RESOURCES
11. Since
the establishment of the Working Group on Indigenous Populations, indigenous
peoples have emphasized in that forum the fundamental nature of their
relationship to their homelands. They
have done so in the context of the urgent need for understanding by non‑indigenous
societies of the spiritual, social, cultural, economic and political
significance to indigenous societies of their lands, territories and resources
for their continued survival and vitality.
In order to understand the profound relationship that indigenous peoples
have with their lands, territories and resources, there is a need for
recognition of the cultural differences that
exist between them and non‑indigenous people,
particularly in the countries in which they live. Indigenous peoples have urged the world
community to attach positive value to this distinct relationship.
12. It must
be noted that, as indigenous peoples have explained, it is difficult to
separate the concept of indigenous peoples’ relationship with their lands,
territories and resources from that of their cultural differences and values. The relationship with the land and all living
things is at the core of indigenous societies.
For example, the land tenure system, known as Kipat, of the Limbu
indigenous people of Nepal provides a means of belonging to a place and to a
distinctive community ‑ the one not separable from the other. Kipat defines them as a “tribe”.[2] According
to one authority, Kipat “is fused with and articulates the culture and any
assault on Kipat is seen as a threat to the very existence of the Limbu as a
separate community within the society”.[3] Professor Robert A. Williams, in the context
of the discussion about the territorial rights of indigenous peoples in the
Working Group on Indigenous Populations, stated that “indigenous peoples have
emphasized that the spiritual and material foundations of their cultural
identities are sustained by their unique relationships to their traditional
territories”.[4]
13. Professor
James Sakej Henderson attempts to illustrate this distinct relationship and
conceptual framework by stating that “the Aboriginal vision of property was
ecological space that creates our consciousness, not an ideological construct
or fungible resource ... Their vision is
of different realms enfolded into a sacred space ... It is fundamental to their identity,
personality and humanity ... [the] notion of self does not end with their
flesh, but continues with the reach of their senses into the land”.[5] Such a relationship manifests itself in the
elements of indigenous peoples’ cultures, such as language. For example, an Inuit elder tried to
articulate this relationship by stating that “our language contains an
intricate knowledge of the Arctic that we have seen no others demonstrate”.[6]
14. For a
number of different reasons, the international community has begun to respond
to indigenous peoples in the context of a new philosophy and world perspective
with respect to land, territory and resources.
New standards are being devised based, in part, upon the values that have
been expressed by indigenous peoples and which are consistent with indigenous
peoples’ perspectives and philosophies about their relationships to their
lands, territories and resources.
15. Policy
and direction within the Sub‑Commission and other United Nation bodies in
regard to the relationship of indigenous peoples with their lands, territories
and resources have been shaped by the conclusions, proposals and
recommendations of Special Rapporteur José R. MartÃnez Cobo, in
volume V of the Study of the Problem of Discrimination against Indigenous
Populations.[7] They generally reflect indigenous peoples’
articulation of this distinct relationship. Mr. MartÃnez Cobo states:
“It
is essential to know and understand the deeply spiritual special relationship
between indigenous peoples and their land as basic to their existence as such
and to all their beliefs, customs, traditions and culture.
“For
such peoples, the land is not merely a possession and a means of production.
The entire relationship between the spiritual life of indigenous peoples and
Mother Earth, and their land, has a great many deep‑seated implications. Their land is not a commodity which can be
acquired, but a material element to be enjoyed freely.”[8]
16. A
further example of the recognition of this special relationship is the specific
reference to “the special importance for the cultures and spiritual values of
the peoples concerned of their relationship with the lands or territories, or
both as applicable, which they occupy or otherwise use, and in particular the
collective aspects of this relationship”, in article 13 of the International
Labour Organization Convention No. 169 concerning Indigenous and Tribal
Peoples in Independent Countries.
17. The
distinctive nature of indigenous peoples’ relationship to lands is also referred
to in the draft United Nations declaration on the rights of indigenous
peoples, in both preambular and operative paragraphs. In particular, article 25 states:
“Indigenous
peoples have the right to maintain and strengthen their distinctive spiritual
and material relationship with the lands, territories, waters and coastal seas
and other resources which they have traditionally owned or otherwise occupied
or used, and to uphold their responsibilities to future generations in this
regard.”
18. Finally,
the proposed American Declaration on the Rights of Indigenous Peoples, drafted
by the Inter‑American Commission on Human Rights and now under consideration by
the Permanent Council of the Organization of American States, contains the
following preambular language:
“[The
States,]
“Recognizing
the respect for the environment accorded by the cultures of indigenous peoples
of the Americas, and considering the special relationship between the
indigenous peoples and the environment, lands, resources and territories on
which they live and their natural resources.
...
“Recognizing
that in many indigenous cultures, traditional collective systems for control
and use of land and territory and resources, including bodies of water and
coastal areas, are a necessary condition for their survival, social
organization, development and their individual and collective well‑being ...”.[9]
19. In
summary, each of these examples underscores a number of elements that are
unique to indigenous peoples: (i) a
profound relationship exists between indigenous peoples and their lands,
territories and resources; (ii) this relationship has various social, cultural,
spiritual, economic and political dimensions and responsibilities; (iii) the
collective dimension of this relationship is significant; and (iv) the
intergenerational aspect of such a relationship is also crucial to indigenous
peoples’ identity, survival and cultural viability. There may be additional elements relating to
indigenous peoples and their relationship to their lands, territories and
resources which have not been captured by these examples.
II. HISTORY AND
BACKGROUND: IMPACT OF THE DOCTRINES
OF DISPOSSESSION
20. The
gradual deterioration of indigenous societies can be traced to the non‑recognition
of the profound relationship that indigenous peoples have to their lands,
territories and resources, as well as the lack of recognition of other
fundamental human rights. The natural
order of life for indigenous peoples has been and continues to be threatened by
a different order, one which is no longer dictated by the natural environment
and the indigenous peoples’ relationship to it. Indigenous societies in a
number of countries are in a state of rapid deterioration and change due in
large part to the denial of the rights of the indigenous peoples to lands,
territories and resources.
21. The
colonization of indigenous territories has affected indigenous peoples in a
number of ways. Demographic
deterioration occurred through maltreatment, enslavement, suicide, punishment
for resistance, warfare, malnutrition due to destruction of the natural
environment or over‑exploitation of natural resources, disease and outright
extermination. Rodolfo Stavenhagen
states that “the entire population of the Americas decreased by 95 per cent in
the century and a half following the first encounter”.[10] The intent to convert indigenous peoples to
Christianity and bring them under the “sovereignty” of foreign monarchs created
widespread havoc, despite some early attempts at “friendly treatment”. With population decline came the destruction
of the traditional social order, due to the efforts of missionaries and Western
attitudes towards the divisions of labour and of gender, among others. The introduction of the practice of attaching
a monetary value to things and of buying and selling things previously
considered non‑merchantable, including land, added the stress of an economic
environment quite opposite to the traditional economic order of most indigenous
communities. These concepts were all
alien to the collective social organization of indigenous communities.
22. The
factual accounts relating to the dispossession and expropriation of indigenous
peoples’ lands are too varied, detailed and extensive to examine in this
working paper. There is much to be
learned from indigenous peoples worldwide about the methods and legal doctrines
used to dispossess them. At present,
however, it is of critical importance to underscore the cultural biases that
contributed to the conceptual framework constructed to legitimize colonization
and the various methods used to dispossess indigenous peoples and expropriate
their lands, territories and resources.
It is safe to say that the attitudes, doctrines and policies developed
to justify the taking of lands from indigenous peoples were and continue to be
largely driven by the economic agendas of States.[11]
23. The
early theorists who espoused a “naturalist” framework were the first to tackle
the difficult question of the place of indigenous peoples within modern
international law and, in particular, indigenous peoples as rightful owners of
their lands, territories and resources. “Naturalist” constructions were founded
upon the notion of a higher authority and divine reason, and rooted in
morality. An important feature of the
“naturalist” view was the principle of the equality of all human beings. This principle had an important place in the
articulation of the application of natural law to the “Indians” of the New
World. In recent years, this equality
principle has been used by groups in North America opposed to redressing past
inequities to
argue that “equality for all” means maintaining the
status quo, or worse, taking away the unique status of aboriginal peoples in
the laws, treaties and constitutions of Canada and the United States.[12]
24. Early
naturalists actually advocated on behalf of the Indians against imperial and
papal authority with regard to the assertions of Spanish ownership, use and
exploitation of Indian lands and resources, which were based upon the doctrines
of conquest and discovery. They argued
that Indian peoples did in fact have rights to the land, and some went one step
further by addressing, in the context of the laws of war, the rights and
capacity of Indian nations and peoples to enter into treaty relations although
they were “strangers to the true religion”.
In their construction, if Indian peoples were in fact human beings and
equal, they would have “just cause” to wage war against the invaders. However, unless conquest followed a just war,
Indians could not unilaterally be dispossessed of their lands or deprived of
their autonomous existence.
25. Such
prescriptions for the European encounters with indigenous peoples were building
blocks for a system of principles and rules governing encounters among all
peoples of the world. Subsequent theorists continued during the early
nineteenth century to include non‑European aboriginal peoples among the
subjects of what came to be known as the “law of nations” and later,
“international law”.
26. Hence,
early theorists did address the question of the rights of Indian peoples in the
framework of natural law, albeit without their participation or knowledge. Nonetheless, such theorists believed that
natural law had the capacity to respond to the rights and interests of the
indigenous peoples of the Americas.
Whatever protection the early law of nations afforded indigenous
peoples, it was not enough to stop the forces of colonization and empire as
they extended throughout the globe.
Theorists eventually modified the law of nations to reflect, and hence
legitimize, a state of affairs that subjugated indigenous peoples. International law remains primarily concerned
with the rights and duties of European and similarly “civilized” States and has
its source principally in the positive, consensual acts of those States.
27. Unfortunately,
established Christian and other religious values became embedded in natural law
and international law, undercutting any possibility for indigenous peoples’
claims, rights and values to be advanced in the years following invasion. Indigenous peoples were commonly labelled
“infidels” and “pagans” in natural law discourse. Discriminatory and racist attitudes are
apparent in the terminology alone.
Although natural law may have been more expansive in some respects, a
very narrow concept began to emerge when the colonizing countries furthered
their adventures into the Americas and elsewhere. Their perspectives and values began to subsume
indigenous nations and peoples.
28. In most
situations, it was only through rationalization and military domination that
colonizers secured “ownership” of the lands, territories and resources of
indigenous peoples. The territories of
indigenous peoples in the Americas and elsewhere were taken through many means,
but largely by military force. Where
“just war” could not be waged, treaties sometimes were concluded. In regard to North America, Vine Deloria, Jr.
wrote:
“Treaty‑making
was a feasible method of gaining a foothold on the continent without alarming
the natives. Treating with the Indians,
then, brought an air of civility and legitimacy to the white settlers’
relations with the Indians and provoked no immediate retaliation by the
tribes. Instead of the Indians being
subjected to bondage or their lands merely seized through the use of force,
which Spain eventually did, civility reigned in North America. Indian land and the rights to live in certain
areas were purchased at formal treaty sessions.”[13]
29. What
territory remained was diminished further by forcible or coerced removal,
relocation and allotment. Many
indigenous communities in North America were forced onto reservations. The severing of indigenous peoples from their
lands and territories and the failure by States to recognize the social,
cultural, spiritual and economic significance of land to indigenous peoples had
both short‑ and long‑term impacts on indigenous communities.
30. The
doctrines of dispossession which emerged in the subsequent development of
modern international law, particularly “terra nullius”, and “discovery”,
have had well‑known adverse effects on indigenous peoples. The doctrine of terra nullius as it is
applied to indigenous peoples holds that indigenous lands are legally
unoccupied until the arrival of a colonial presence, and can therefore become
the property of the colonizing power through effective occupation.[14]
Strictly speaking, in the seventeenth, eighteenth, and nineteenth centuries,
the doctrine of “discovery” gave to a discovering State of lands previously
unknown to it, an inchoate title that could be perfected through effective
occupation within a reasonable time.[15] The doctrine, as it has come to be applied by
States with little or no support in international law, gives to the
“discovering” colonial power free title to indigenous lands subject only to
indigenous use and occupancy, sometimes referred to as aboriginal title.[16] Only recently has the international community
begun to understand that such doctrines are illegitimate and racist. For example, while the Permanent Court of
International Justice based its decision in the Eastern Greenland case of 1933[17]
upon the same framework and attitudes, in 1975 the International Court of
Justice ruled that the doctrine of terra nullius had been erroneously
and invalidly applied against the tribal peoples of the Western Sahara.[18]
31. The
High Court of Australia in its 1992 decision in Mabo v. Queensland
discussed the legal and other effects of the doctrine of terra nullius. The Court denounced the doctrine by
concluding that this “unjust and discriminatory doctrine ... can no longer be
accepted”. This decision gave rise to
the Native Title Act, adopted by the Government of Australia in 1993, which
established a framework and mechanism by which Aboriginal peoples in Australia
could secure land rights. However,
Australian Aboriginal peoples have reported to the Working Group that they have
great difficulties with the Act, and regard as unjust and ill‑founded the
State’s asserted authority, recognized in the Mabo decision, to
extinguish indigenous land rights.[19] To what extent the Government of Australia
can continue to extinguish indigenous land title through legislation that
discriminates against indigenous title is a matter of ongoing debate. The Committee on the Elimination of Racial
Discrimination, on 18 March 1999, issued a decision finding that provisions in
the 1998 Native Title Act Amendments extinguish or impair the exercise of
indigenous title rights and interests and discriminate against native title
holders (A/54/18, para. 21, decision 2 (54)). This case is discussed further in paragraphs
46, 64 and 89
below. It
demonstrates that Eurocentrist and discriminatory ideas continue to be evident
in legal theory and action and that such attitudes in national legislation and
court decisions may trap indigenous peoples in a legal discourse that does not
embrace their distinct cultural values, beliefs, institutions or perspectives.[20]
III. FRAMEWORK
FOR THE ANALYSIS OF CONTEMPORARY
PROBLEMS REGARDING
INDIGENOUS LAND RIGHTS
32. The
principal problems that will be explored in this working paper are numerous and
diverse. These problems may be organized
into an analytical framework that will help to clarify them and identify
possible solutions. This analytical
framework follows.
A. Failure
of States to acknowledge indigenous rights to lands,
territories
and resources
33. This
most fundamental and widespread problem is divided into two parts: the failure of States to recognize the
existence of indigenous use, occupancy and ownership, and the failure of States
to accord appropriate legal status, juridical capacity and other legal rights
in connection with indigenous peoples’ ownership of land.
1. Failure
to recognize the existence of indigenous use,
occupancy and ownership
34. Countries
in many parts of the world are unaware of or ignore the fact that communities,
tribes or nations of indigenous peoples inhabit and use areas of land and sea
and have done so, in many cases, since time immemorial. These areas are typically far from the
capitals and other urban areas of the country and typically countries regard
these lands and resources as public or government lands. Although the indigenous people concerned
regard themselves, with good reason, as owning the land and resources they
occupy and use, the country itself, typically, disposes of the land and
resources as if the indigenous people were not there.[21] These governmental tendencies are further
exacerbated in federations such as Canada and the United States, where
state/provincial and even municipal governments sometimes pursue such actions,
either in coordination with the central or national Government, or
independently and in pursuit of their own policy.[22]
35. There
exist numerous examples of unilateral State action as described above regarding
traditional, indigenous lands. In Belize
17 logging concessions were recently granted by the Government to foreign
companies to cut timber in forests where Maya people have always lived and have
relied on the forest for their subsistence.
The San or Bushmen in certain African countries face, among other land
problems, grave difficulties because of the lack of national legislation
safeguarding their land use and tenure.[23] Two organizations report that the Saami of
Norway are contending with a number of governmental actions which threaten
their remaining lands and resources, including the conveyance of a large
portion of land in Finnmark to a State-owned, for-profit company, and the
planned expansion and connection of two existing military training fields.[24] In West Papua New Guinea (West Irian), the
Government of Indonesia encouraged transmigration and settlement on lands where
indigenous peoples have lived.[25] In certain countries this process has
reportedly caused widespread dislocation of indigenous peoples, practically
forcing many to live in other countries.
In the words of one authority, “the indigenous peoples of the
Philippines are squatters on their own lands”, because the Philippine State
claims ownership of some 62 per cent of the country’s territory.[26] Similar situations are reported in Indonesia,
Thailand and India, and most African countries are reported to claim all forest
lands.[27] In Nicaragua, the Government planned an
environmental preserve or park in complete disregard of the indigenous
population living on that land. The
MartÃnez Cobo study found that many countries with large indigenous populations
nevertheless reported that no such peoples existed there. Although this situation has improved, the
problem appears to continue.
2. The
failure of States to accord appropriate legal status, appropriate
juridical capacity and other legal
rights
36. This
problem is closely related to the one discussed above. Although States know that indigenous
communities, nations or groups exist and have exclusive use and occupancy of an
area, some States do not acknowledge that the indigenous peoples concerned have
legal entitlement or rights to the land or resources. In some situations, the indigenous peoples
are regarded as using the public or national lands at the sufferance of the
Government.
37. The
concept of aboriginal title and the relationship of this legal concept to the
human rights of indigenous peoples is centrally important. In many countries, particularly those of the
British Commonwealth, exclusive use and occupancy of land from time immemorial
gives rise to aboriginal title, a title that is good against all but the
Sovereign, that is, the Government of the State.[28] Where aboriginal title is recognized,
indigenous peoples have at least some legal right that can be asserted in the
domestic legal system. However,
aboriginal title is often subject to the illegitimate assumption of State power
to extinguish such title, in contrast to the legal protection and rights that,
in most countries, protect the land and property of non-indigenous citizens,
other individuals and corporations (discussed further in paragraphs 40 to 47
below). This single fact probably
accounts for the overwhelming majority of human rights problems affecting
indigenous peoples.
38. In many
of the countries that do recognize aboriginal title, it is more limited in its
legal character and the rights that appertain to it, and more limited in the
legal protection accorded to it, than other land titles. For example, the
Supreme Court of Canada gave extensive consideration to the question of
aboriginal title in its decision, Delgamuukw v. The Queen, of
11 December 1997. The court
found that aboriginal title is recognized and affirmed in the
Constitution Act of 1982. The court
found that it is a right to land, a property interest and a collective right,
and that it is sui generis (unique).
However the Chief Justice makes clear that aboriginal title to land in
Canada is a distinct and clearly inferior right as compared to ordinary fee
simple title. Aboriginal title is
described as a “burden” on the underlying title of the Crown. It is a title that cannot be alienated except
to the Crown. It is merely a right to
use and occupy the land, and an important limit is placed by the Supreme Court
on the use of the land. The land cannot
be used in a manner that is irreconcilable with the nature of the claimants’
attachment to that land. For example,
land used as a hunting ground cannot be used so as to destroy its value as a
hunting ground. Fair compensation is
required for infringements of aboriginal title, but no clear principles for
compensation were established in the decision.[29]
39. In some
countries, indigenous communities do not have the legal capacity to own land,
or do not have the capacity to own land collectively. Where the indigenous people or group is not
recognized as having juridical status or existence, it cannot hold title to
lands or resources nor take legal action to protect those property
interests. Many States that a generation
ago denied such legal capacity to indigenous peoples have now made positive
reforms, but further study of this problem is called for.
B. Discriminatory
laws and policies affecting indigenous peoples
in relation to their lands
40. In
those States that have developed a body of positive law and a body of
jurisprudence in regard to indigenous peoples - and their number is increasing
- the most significant problems appear to arise because of persistent
discriminatory laws and legal doctrines that are applied to indigenous peoples
and their lands and resources.[30]
The concept of aboriginal title, as discussed above, is itself discriminatory
in that it provides only defective, vulnerable and inferior legal status for
indigenous land and resource ownership.[31]
These discriminatory laws and legal doctrines deserve special attention because
they appear to be so widespread, because they appear to be in violation of
existing international human rights norms and because they appear to be
relatively amenable to correction.
1. Laws
regarding the extinguishment of indigenous peoples’
land and resource rights[32]
41. Practically
all countries where indigenous peoples live assert the power to “extinguish”
the land titles and rights of the indigenous peoples within their borders,
without the consent of the indigenous peoples.
The concept of extinguishment includes voluntary purchase and sale of
title, but more commonly the term “extinguishment” is used to mean outright
taking or expropriation, most often without just compensation. Like the concept of aboriginal title,
extinguishment is a term that came into prominent use during the colonial
period.[33]
42. The
problem of extinguishment is related to the concept of aboriginal title. The central defect of so-called aboriginal
title is that it is, by definition, title that can be taken at will by the
Sovereign - that is, by the colonial Government, or nowadays, by the
State. Like aboriginal title, the
practice of involuntary extinguishment of indigenous land rights is a relic of
the colonial period. It appears that, in
modern times, the practice of involuntary extinguishment of land titles without
compensation is applied only to indigenous peoples. As such, it is discriminatory and unjust, to
say the least, and deserving of close examination.
43. One
particularly clear example of the problem of extinguishment is provided by the
case of the Tee-Hit-Ton Indians v. United States.[34] In this case the Supreme Court decided that
the United States may (with limited exceptions) take or confiscate the land or
property of an Indian tribe without due process of law and without paying just
compensation, this despite the fact that the United States Constitution
explicitly provides that the Government may not take property without due
process of law and just compensation.
The Supreme Court found that property held by aboriginal title, as most
Indian land is, is not entitled to the constitutional protection that is
accorded all other property. The
racially discriminatory nature of the Tee-Hit-Ton decision can be seen in the
opinion, an extract of which follows:
“No case in this court has ever held that
taking of Indian title or use by Congress required compensation. The American people have compassion for the
descendants of those Indians who were deprived of their homes and hunting
grounds by the drive of civilization.
They seek to have the Indians share the benefits of our society as
citizens of this Nation. Generous
provision has been willingly made to allow tribes to recover for wrongs, as a
matter of grace, not because of legal liability.
“... Every American schoolboy knows that the savage
tribes of this continent were deprived of their ancestral ranges by force and
that, even when the Indians ceded millions of acres by treaty in return for
blankets, food and trinkets, it was not a sale but the conquerors’ will that
deprived them of their land.”
44. The
legal doctrine created by this case continues to be the governing law on this
matter in the United States today.[35]
The racially discriminatory character of the decision has not prevented this doctrine
from being freely used by the courts and by the United States Congress in
legislation, even in recent years.
Indeed the Congress relied on this doctrine in 1971 when it extinguished
all the land rights and claims of practically every one of the 226 indigenous
nations and tribes in Alaska by adopting the Alaska Native Claims Settlement
Act. The Act provided for transferring
the land to profit-making corporations that were required to be created by the
indigenous peoples and for paying a sum of money to each native corporation - a
sum far less than the value of the land.
The Alaska native tribes themselves were paid nothing. The remaining lands of the territory that
belonged to the tribes, or that had been claimed by them, were turned over to
the State of Alaska and the United States.
The Alaska native tribes never consented to the legislation. Because of the concepts of aboriginal title
and extinguishment, and because of the related discriminatory legal doctrines
(which are discussed further below), it was understood that the lands of these
indigenous peoples could be taken outright, without payment or just
compensation.[36]
45. Indigenous
representatives and experts have reported that many other countries have laws
and policies similar to those of the United States in this regard. Canada, for example, established this
doctrine in 1888,[37]
but the Constitution Act of 1982, section 35 (1), recognizes and affirms
aboriginal and treaty rights. By reason
of the Constitution Act of 1982, courts in Canada no longer acknowledge
government power to “extinguish” aboriginal rights. Instead, the courts have decided that
aboriginal rights, including aboriginal land title, are not absolute but may be
“infringed” by the federal or provincial governments when the infringement is
“justified” by the needs of the larger society.
In a recent case, Chief Justice Lamer of the Supreme Court of Canada
wrote: “In my opinion, the development
of agriculture, forestry, mining, and hydroelectric power, the general economic
development of the interior of British Columbia, protection of the environment
or endangered species, the building of infrastructure and the settlement of
foreign populations to support those aims, are the kinds of objectives that are
consistent with this purpose and, in principle, can justify the infringement of
aboriginal title.” (Delgamuukw v. The Queen, paragraph 165 of the Chief
Justice’s opinion, unpublished decision, 11 December 1997). It remains unclear whether this new
requirement of “justification” will in fact provide greater protection to
indigenous land rights than previous law.
As noted above, it also remains doubtful whether the law accords an
equal, non-discriminatory level of legal protection to indigenous property
rights as compared to the property rights of others.
46. As
discussed above, the High Court of Australia, in Mabo v. Queensland,
ruled that the doctrine of terra nullius may not be applied to deny
indigenous rights to land, but nonetheless confirmed the power of the Sovereign
to extinguish native title.[38] The Court held that native title may be
extinguished, but only by legislation, by the alienation of land by the Crown
or by the appropriation of the land by the Crown in a manner inconsistent with
the continuation of native title. The
Native Title Amendment Act, enacted in 1998, provided a number of means whereby
native or indigenous title would be extinguished. The Act has been attacked as discriminatory
in several respects: the amendments
prefer the rights of non-native title holders over those of native title
holders; they fail to provide native title holders with protection of the kind
given to other landowners; they allow for discriminatory action by governments;
they place barriers to the protection and recognition of native title; and they
fail to provide for appropriately different treatment of unique aspects of
Aboriginal culture.[39] The Committee on the Elimination of Racial
Discrimination has found various provisions of the Act discriminatory:
“7.
The Committee notes, in particular, four specific provisions that
discriminate against indigenous title holders under the newly amended Act. These include: the Act’s ‘validation’ provisions; the ‘confirmation
of extinguishment’ provisions; the primary production upgrade provisions; and
the restrictions concerning the right of indigenous title holders to negotiate
non-indigenous land uses.”[40]
The Committee found that the amended Act cannot be
considered to be a special measure within the meaning of articles 1.4 and 2.2
of the Convention and expressed its concerns about Australia’s compliance with
articles 2 and 5 of the Convention.
2. Plenary
power
47. Another
discriminatory legal doctrine that appears to be widespread is the doctrine
that States have practically unlimited power to control or regulate the use of
indigenous lands, without regard for constitutional limits on governmental
power that would otherwise be applicable.
In the United States, this is known as the “plenary power doctrine” and
it holds that the United States Congress may exercise virtually unlimited power
over indigenous nations and tribes and their property. No other population or group is subject to
such limitless and potentially abusive governmental power.
3. Treaty
abrogation and land rights
48. Another
example of discriminatory legal doctrines is the law in regard to treaties made
with indigenous peoples. Treaties have
been used, among other purposes, as mechanisms for gaining cessions of
indigenous land and for ostensibly guaranteeing rights to the remaining lands
held by the indigenous nation. The
problem of discrimination arises when the State later abrogates or violates the
treaty. In the typical case, the injured
indigenous nation or tribe has no legal remedy against the State either in domestic
law or under international law. The
denial of any remedy under international law is inconsistent with the use of
treaties as a legal mechanism and with the status of indigenous peoples as
subjects of international law. Thus,
indigenous peoples appear to be unique in being denied legal remedies for
violation of their rights where the State abrogates or violates a treaty
between the State and an indigenous nation, tribe or peoples. Certain States, including New Zealand and the
United States, regard treaties as instruments of domestic law as well as
international law and accordingly do not believe a remedy under international
law is necessarily appropriate. The
question, in such cases, remains whether a just remedy is provided for treaty
violation or abrogation, and whether the use of the treaty mechanism in
domestic law is non-discriminatory.
C. Failure
to demarcate
49. In
terms of frequency and scope of complaints, the greatest single problem today
for indigenous peoples is the failure of States to demarcate indigenous lands.[41] Demarcation of lands is the formal process of
identifying the actual locations and boundaries of indigenous lands or
territories and physically marking those boundaries on the ground. Purely abstract or legal recognition of
indigenous lands, territories or resources can be practically meaningless
unless the physical identity of the property is determined and marked.
50. Some
States, such as Brazil, have strong and very positive laws requiring
demarcation of indigenous lands. Others,
perhaps the majority, have no such laws.
In States with laws requiring demarcation, the implementation and
execution of those laws have been weak or absent. Where such laws are lacking or weak, problems
arise because, not having demarcated indigenous land, the State cannot identify
what is indigenous land and what is not.
As a result there are conflicts with indigenous communities. Nicaragua and Belize present examples of this
kind of situation.
51. An
important case now before the Inter-American Court of Human Rights raises the
issues of States’ obligations to recognize and respect the lands, resources and
territories of indigenous peoples, and States’ obligations to demarcate those
lands and territories. The case is that
of the Mayagna indigenous community of Awas Tingni against Nicaragua; it was
filed with the Court by the Inter-American Commission on Human Rights in June
1998.[42] The Court unanimously dismissed Nicaragua’s
preliminary objections in February 2000 and is proceeding with the case.[43]
52. The
complaint is based on a petition filed by the community of Awas Tingni with the
Inter-American Commission. The community
of Awas Tingni alleged that the Government of Nicaragua had not met its legal
obligations under the Nicaraguan Constitution and international law by failing
to recognize and safeguard the community’s rights to the lands that its members
have traditionally occupied and used.
Despite various efforts by the community of Awas Tingni to formally
demarcate or achieve other specific legal recognition of its traditional lands,
the community’s use and occupancy of those lands became increasingly
threatened. Rather than respond to Awas
Tingni’s requests that its land rights be respected, and without consulting
with Awas Tingni, the Government of Nicaragua granted a concession to a Korean
timber company to log lands (nearly 65,000 hectares) traditionally held by Awas
Tingni.
53. The
case before the Court asserts, among other things, that Nicaragua has a legal
obligation to demarcate and respect the traditional lands of Awas Tingni by
reason of article 21 of the American Convention on Human Rights (“Everyone
has the right to the use and enjoyment of his property ...”) and article 27 of
the International Covenant on Civil and Political Rights, which provides: “In those States where ethnic, religious or
linguistic minorities exist, persons belonging to such minorities shall not be
denied the right, in community with the other members of their group, to enjoy
their own culture, to profess and practise their own religion, or to use their
own language.” Nicaragua is a party to both the Convention and the
Covenant. It is argued, with
considerable authority, that traditional indigenous land tenure systems and
patterns of land use are an aspect of culture that is protected by article 27
of the Covenant. This case is the first
to raise indigenous land rights issues and the obligations of States to respect
these rights. The decision of the
Inter-American Court may have a far-reaching impact in determining the present
scope of international legal obligations to respect and demarcate indigenous
lands and resources under the American Convention and the International
Covenant on Civil and Political Rights.
D. Failure
of States to enforce or implement laws
protecting indigenous lands
54. Some of
the most grave situations, such as the massive invasion of Yanomami lands in
Brazil and the resulting deaths of thousands of Yanomami Indians, came about in
large part because of the State’s failure to enforce existing laws. Even after demarcation of the Yanomami
territory, the Government of Brazil has not devoted the resources necessary to
prevent the illegal invasion of thousands of gold miners. Gold miners have recently been responsible in
part for the unprecedented fires that have burned extensively within the
Yanomami territory, destroying vast areas of forest and food crops. The fires caused widespread outbreaks of
disease that resulted in the deaths of more than 100 Yanomami in 1998.[44]
In other situations, indigenous peoples
find they cannot protect their rights to lands and resources because they do
not have effective recourse to the courts or other legal remedies. In the worst situations, violence,
intimidation and corruption prevent effective legal action by or on behalf of
indigenous peoples. This was reported,
for example, concerning efforts by Macuxi Indian communities in Brazil to
protect their lands. In December 1998,
the Government of Brazil took a positive step towards remedying the situation
by issuing a decision to proceed with demarcation of the Raposa/Serra do Sul
area in the northern state of Roraima.
The area is home to the Macuxi, Wapixana, Ingariko and Taurepang Indian
peoples. Previously, the Inter-American
Commission on Human Rights of the Organization of American States had visited
the area and formally recommended that the Government of Brazil take steps to
demarcate the Raposa/Serra do Sul area.[45]
However, in the months following the Government’s decision there have been
widespread reports of an increase in acts of physical and political
intimidation by gold miners and agriculturists living in the area. Official demarcation of the Raposa/Serra do
Sul area still awaits ratification by the President of Brazil and there is
still a considerable possibility that the area will be further reduced before
demarcation begins.[46] In other settings, in various countries,
there is sometimes no effective legal system to provide a remedy, or indigenous
peoples cannot afford to pay for necessary professional legal representation,
or they cannot use the language required by the courts or legal agencies, or
they cannot travel to the courts or legal agencies, or they simply do not know
that legal remedies may be available. As
with other human rights, the poverty, geographical remoteness and cultural and
linguistic differences of indigenous peoples create severe impediments to the
protection of their land, territorial and resource rights.
E. Problems
in regard to land claims and return of lands
55. The
long and painful history of the unjust and inhuman dispossession of indigenous
peoples from their territories has resulted in many indigenous peoples having
no land or resources or too little land and resources to sustain their communities
and their cultures. This is by no means
universally true, but for many indigenous peoples, their future will depend on
acquiring the lands and resources needed for sustainable economic development
and for a degree of self-sufficiency.
The most severe problems exist in countries where there are no legal
remedies and no legal or political mechanisms for addressing or resolving
indigenous land claims. It is reported
that in Nepal, for example, no such remedies or mechanisms are available to
indigenous peoples, who have lost practically all their lands and resources.[47]
56. Positive
and successful measures relating to claims for land and return of land are
dealt with in section IV below. The
present discussion addresses the problems, some of them quite severe, that have
been created by some claim and negotiation procedures and land return measures.[48]
57. A
particular problem that has been repeatedly brought to the attention of the
Commission on Human Rights and the Sub-Commission is the use or misuse of claim
procedures to deprive indigenous peoples of their rights or their claimed
rights to land and resources. Numerous
such problems have been reported by indigenous peoples in many countries. The problems may be summarized as
follows: in some cases, an unauthorized
or mistaken claim is made to a court or administrative body that the State has
taken or paid an unfairly low price for an area of land originally owned by an
indigenous people, whereas in fact the land has not been taken but is still
owned by the indigenous people. In other
cases, the land has been taken but the indigenous people concerned does not
want compensation but return of the land.
Fraudulent or mistaken claims are sometimes, in effect, encouraged by
legal provisions that permit a lawyer to earn a fee of as much as 10 per cent
of the money award recovered. When such
claims are taken to conclusion and an award of compensation is made, the
payment of the award effectively extinguishes the indigenous title to the land
in question. This has occurred even in
situations where the Indian nation or tribe is still in possession of the
land. Thus, these “claims” processes are
depriving Indians of their lands.
58. The
problems created by fraudulent and improper claims are aggravated by the lack
of proper legal procedures in the claim process. Processes such as that of the now defunct
Indian Claims Commission in the United States did not ensure that claimants had
proper authority to act for the tribe concerned. Procedures did not give the tribes concerned
proper notice or an opportunity to be heard.
The above-mentioned Commission in more than one case permitted lawyers
to act in direct opposition to their supposed or nominal client tribes and even
permitted lawyers to carry on money compensation claims after the claimant
tribes had dismissed the lawyers in an effort to stop the claims.
59. Although
the Indian Claims Commission no longer exists, the cases that it handled and
the problems it created continue. Some
notable cases that remain unresolved are the Black Hills claim (in which the
Sioux tribes have refused to accept the compensation awarded and seek a return
of portions of the land) and the Western Shoshone case (in which the Western
Shoshone tribes also refuse payment and seek a restoration of some of the
land). In the latter case, some Western
Shoshones have remained in possession of certain areas of the land supposedly
taken by the United States and are resisting government efforts to interfere
with their use of the land. The extensive
and disruptive problems relating to the Indian Claims Commission have been
given scholarly attention.[49]
These problems have also been the subject of complaints to the
United Nations and other bodies.[50]
60. Many of
the problems discussed in the preceding paragraphs have been raised in a formal
human rights complaint filed with the Inter-American Commission on Human Rights
of the Organization of American States by two Western Shoshone Indian women on
behalf of their Band.[51]
They assert that they are and have always been in possession of parts of the
territory of the Western Shoshone Nation, an area recognized by the United
States in the Treaty of Ruby Valley of 1863.
They use the land for ranching, for religious purposes, for hunting and
gathering, and other purposes. The
United States claims that it now owns nearly all the land at issue and that the
Western Shoshone rights to the land were extinguished by the Indian Claims
Commission process more than 15 years ago.
The United States claims that these Western Shoshones are trespassing on
the land, and the United States has taken various measures to remove them and
their livestock. In recent years, the
discovery of one of the largest gold ore bodies in North America on this land
has led to even greater pressure on these Western Shoshone people, who oppose
open-pit gold mining.
61. The
complaint asserts that the United States has never lawfully extinguished the
Western Shoshone title and that the Indian Claims Commission process was
discriminatory and lacking in due process of law. The principal allegations are summarized as
follows. It is alleged that the
attorneys prosecuting the claim falsely stated and agreed that the land had been
taken and Western Shoshone title extinguished long ago, when in fact it had
not. The lawyers were permitted by the
Commission to represent all Western Shoshones when in fact they did not. The Commission refused to permit any other
Western Shoshone tribe or group to object or to be heard in the
proceeding. The Commission entered its
award, although by then not a single Western Shoshone tribe approved of the
claim. The United States Government
encouraged and participated in the proceedings throughout. The Claims Commission award amounted to about
$0.15 per acre for the land supposedly taken. The United States asserts that the complaint
is inadmissible on various procedural grounds and on the ground that the facts
do not constitute human rights violations.[52]
The Inter-American Commission issued precautionary measures against the United
States, requesting that the Government stay its actions against the
complainants pending a full investigation of the case by the Commission.[53]
Later that same year, the Inter-American Commission declared the Danns’ case
admissible, finding that the Danns had met all procedural requirements and had
raised a prima facie violation of their human rights.[54]
62. It is
apparent from the proceedings in this matter that the United States has
ostensibly extinguished the rights of Western Shoshone Indians to a large area
of their ancestral land without according the ordinary rights of due process of
law and fair market compensation that would have been accorded to non-Indian
landowners. This is the more notable
because the land at issue had been recognized as Western Shoshone land by the
United States in a treaty it signed with the Western Shoshones in 1863. The Indian Claims Commission process appears
to have been lacking in fundamental fairness in many respects, particularly the
failure to assure proper representation of the supposed claimants, the lack of
notice and opportunity to be heard for other Western Shoshone parties, the
failure to require proof of the supposed taking of the land, and the award of
just a few cents per acre for the land at issue. The Claims Commission process in this case,
and reportedly in other cases as well, appears to violate the fundamental
requirements of non-discrimination and equality before the law. In all events, this case seems to demonstrate
that for any claim process to be effective in resolving indigenous land rights
issues it must be fundamentally fair.
63. The
central legal problem in this case appears to be the doctrine, which has been
discussed above (paras. 41-44), that the State can extinguish Indian or
indigenous land rights without due process of law and without fair market
compensation. This frankly
discriminatory doctrine should be rejected by the United States, and by all
countries where it is found, as a violation of existing human rights standards
requiring equality before the law.
64. There
have also been complaints about land claim mechanisms in other countries. In Canada, the process has been reported to
be extremely time consuming. In New
Zealand, anger has been expressed over allegedly unauthorized settlements of
claims.[55] In Australia, the provisions of the 1993
Native Title Act were drastically changed in 1998 to make native title claims
significantly more difficult, particularly by providing a substantially higher
threshold test for the registration of claims.
These provisions have been found racially discriminatory. (See paragraph 46 above.)
F. Expropriation
of indigenous lands for national interests,
including
development
65. The
legacy of colonialism is probably most acute in the area of expropriation of
indigenous lands, territories and resources for national economic and
development interests. In every part of
the globe, indigenous peoples are being impeded from proceeding with their own
forms of development consistent with their own values, perspectives and
interests. The concentration of
extensive legal, political and economic power in the State has contributed to
the problem of development and indigenous peoples’ rights to lands, territories
and resources. In the Malaysian province
of Sarawak, on the island of Borneo, for example, some one fifth of the land is
classified as Native Customary Rights Land (and of this, only one tenth is
titled to indigenous communities), but on this land the Government can override
indigenous rights for timber concessions.[56] In Indonesia it is reported that the
Government purports to respect adat, or indigenous customary rights,
unless the national interest is at stake; but economic development is equated
with the national interest, and indigenous land rights are thus avoided.[57]
66. Moreover,
the strict view of international law as solely the law of nations, and not of
peoples or individuals, has furthered this narrow State‑based approach to
development. The notion of development
can be linked directly to the affirmation of “permanent sovereignty over
natural resources”[58]
and the rights of States to “freely utilize and exploit”[59]
their natural resources. Of particular
relevance in this context is the State assertion that it has complete rights to
subsurface resources. This view has had
numerous unfortunate social, economic, environmental and cultural
consequences. This is especially true in
the case of the world’s indigenous peoples, who have until recently perceived
development as a very negative concept.
Much large‑scale economic and industrial development has taken place
without recognition of and respect for indigenous peoples’ rights to lands,
territories and resources. Economic
development has been largely imposed from outside, with complete disregard for
the right of indigenous peoples to participate in the control, implementation
and benefits of development. For years,
non‑governmental organizations have been saying that indigenous peoples have
been deprived of much or all of their land and that it has been turned over to
commercial use or for development projects.[60] In
addition, development projects designed to benefit or which affect indigenous
peoples have been carried out without the peoples concerned being
consulted. The Working Group on Indigenous
Populations has also been informed of development projects and activities that
were initiated with international assistance and without the involvement,
consent or consultation of indigenous peoples.
Examples include State initiatives to build roads and highways with the
financial assistance of the Inter‑American Development Bank, and the World
Bank’s support for the building of dams in India and elsewhere. Other projects include the construction of
dams that flood lands and terminate traditional economic practices of
indigenous peoples, deforestation and gold‑mining projects.[61] National
economic development schemes not only dispossess indigenous peoples of their
lands, but also convert indigenous peoples into cheap labourers for industry,
because the exploitation of their lands and the environmental degradation have
deprived them of their livelihood. At
its thirteenth session, an indigenous representative told the Working Group on
Indigenous Populations about a national Parliament’s approval of a contract
with a logging company for an area of over 1 million hectares of
rainforest. He claimed that the
company’s activities would destroy his peoples’ ability to live in a
traditional and peaceful way. Another
matter brought to the attention of the Working Group, at its fourteenth
session, by an indigenous representative from Asia involved a mining operation
which had led not only to environmental degradation, but also to rioting among
the indigenous peoples affected, which in turn had led to killing and torture
by security forces.
67. Even in
areas where economic development has resulted in the transfer of lands to
indigenous communities, they have been unable fully to control such
development. Specific examples include
the Alaska Native Claims Settlement Act of 1971 and the James Bay and
Northern Quebec Agreement of 1975.
Other forms of development accompanied by blatant human rights
violations include the gold mining in Yanomami Indian territory.
68. Oil and
gas exploration and exploitation, geothermal energy development, mining, dam
construction, logging, agriculture, ranching and other forms of economic
activity ostensibly in the national interest have had an adverse impact both on
indigenous peoples who have already suffered from contact and colonialism, and
on indigenous peoples in areas long isolated.[62] Often, development takes place without
indigenous peoples’ consent, consultation, participation or benefit.
G. Removal
and relocation
69. Removal
of indigenous peoples from their lands and territories is both a historical and
a serious contemporary problem worldwide.
Removal of indigenous peoples from their lands and territories is
considered by some States as an appropriate solution or a suitable means for
“removing” a problem, whether it is done purportedly to protect indigenous
peoples or to promote State interests in their lands, territories and
resources. Such a policy must rather be
acknowledged as at best a postponement of dealing with the real matter of
accommodating the rights and interests of the indigenous peoples concerned.
70. Removal
and relocation are so widespread that the international community has responded
in the context of human rights standard‑setting: article 16 of ILO Convention
No. 169; article 10 of the draft United Nations declaration on the
rights of indigenous peoples; article XVIII.6 of the proposed Inter‑American
declaration on the rights of indigenous peoples. In connection with the elaboration of these
specific standards, the term “forced” removal has been used to describe the
coercive and abusive actions taken by Governments, without the consent of
indigenous peoples, to remove them from their land. Instances of removal include the removal and
relocation of the Mushuau Innu from Davis Inlet to Nutak[63]
and the High Arctic relocation of Inuit by the Government of Canada, the
relocation of Inuit in northern Greenland by the Government of Denmark, and the
expulsion of Kiowa Indians from their land by ranchers, with no action being
taken by the United States Government despite recognition of Indian ownership
of the lands in 1996. In the Working
Group, numerous speakers have pointed to the forced expulsion of native peoples
from their lands so that Governments could increase logging and oil concessions
to multinational corporations. Others
have spoken of removal purportedly to protect indigenous communities from
military manoeuvres or armed conflict.
71. Indigenous
peoples have characterized population transfers and forced relocation as a very
serious inhuman problem. These
involuntary transfers and relocations have meant the loss of traditional lands
and traditional ways of life, with devastating consequences for the social and
economic welfare of the communities concerned.
A joint statement to the Working Group at its eighth session in 1990 by
indigenous organizations highlighted the negative impact of population
transfers on indigenous cultures.
Governments have used them to counter claims to self‑determination, to
impose non‑indigenous national cultures and to facilitate the disposal of
natural resources. Justification for
relocations included overpopulation, need for resettlement, transmigration,
resource exploitation and security.
H. Other
government programmes and policies adversely affecting
indigenous
peoples’relationship to their lands, territories and resources
72. There
are a range of other government programmes and policies which must be noted
because they have been widely used and abused to justify violating indigenous
land rights. It appears that some States
have been unaware of the baneful effects of such programmes and policies, which
are briefly addressed below.
1. Allotment of land to individuals
73. Programmes
of this sort divide commonly held indigenous land and allot land to individuals
or families. These programmes invariably
weaken the indigenous community, nation or people and usually result in the
eventual loss of most or all of the land.
The supposed advantages of permitting individuals to use their land as
collateral for loans is in fact far outweighed by the almost inevitable loss of
the land and the resulting overall decline in resources available to indigenous
peoples. The experience of the Mapuche
peoples in Chile during the 1970s and 1980s is a sorrowful example.[64]
2. Settlement programmes
74. States
often view indigenous peoples’ territories as areas suitable for settlement by
non‑indigenous peoples ‑ even though the resources in the area provide only a
modest economy for the indigenous owners.
The results of such programmes appear to be even greater poverty and
social unrest. The encouragement of
settlement in the Chittagong Hill Tracts in Bangladesh is an example, and the
problem has also been reported in South America.
3. State
assumption of trust title
75. In certain countries, particularly in the
Americas, States[65] have created the legal notion that the
State itself holds title to all or most indigenous lands and holds that title
in trust for the various indigenous nations, tribes or peoples. This legal status for Indian land has been
given scholarly attention in the United States.[66] There are many problems with such systems of
trust title. They are usually imposed
without the indigenous peoples’ consent.
They often give to the State extensive power to control the use of the
land and its resources. The indigenous
tribe or nation often has no adequate remedy for breach of the trust
responsibility or abuse of the State’s power to control or dispose of their
lands and resources. The responsibility
of the State, acting as trustee, including especially the responsibility to
protect the resources of indigenous peoples, is likely to be poorly defined and
to be in conflict with the State’s other proprietary and governmental
interests. Systems of trust title,
depending upon the circumstances, may make indigenous ownership of land and
resources a second‑class legal right, and as such they are or can be racially
discriminatory.
4. Loan programmes
76. As
mentioned in the section concerning allotment of lands, programmes that
encourage using indigenous lands as collateral for loans are likely to result
in the eventual loss of indigenous lands and resources. This appears to be due in part to the
relative lack of economic power of most indigenous peoples, as a result of
which almost any programme that makes indigenous lands or resources a commodity
in the market place is likely to result in the loss of these resources to the
indigenous peoples concerned. This is
not to say that indigenous peoples should not participate in market economies,
but they should do so on terms of fairness and equality.
5. Management
of sacred and cultural sites by Governments
77. In many
countries, particular sites or areas of land that are of great religious or
cultural significance to indigenous peoples are now in the ownership of the
State or a governmental subdivision of the State. This situation may present a special problem,
even where title to the land is not contested, when they are managed in a way
that prohibits or interferes with indigenous access or indigenous religious
practices tied to the site.
I. Failure
to protect the integrity of the environment of
indigenous lands and territories
78. For
analytical purposes it is useful to identify situations that involve
deprivation of indigenous land rights through activities that destroy the
integrity of the environment of indigenous peoples. The problems regarding environmental
degradation and development illustrate the specific matter of State failure to
protect the integrity of indigenous peoples’ lands, territories and resources
from both direct and indirect adverse impacts.
Furthermore, this question relates to global environmental problems as
well as national development initiatives.
79. One
aspect of the problem is that indigenous peoples’ territories and lands do not
always follow State, provincial or other administrative boundaries. Indigenous peoples whose territories
transcend State boundaries include many indigenous peoples in Central and South
America, the Mohawk Nation and Passamaquoddy Nation in Canada and the United
States, the Tohono O’odham in the United States and Mexico, and the Inuit
of the Russian Far East, the United States, Canada and Greenland. The diversity of interests, laws, policies
and national development schemes in different jurisdictions can have direct
adverse impacts upon the integrity of indigenous lands, territories and
resources. States claiming jurisdiction
or authority over territories often do not recognize the impacts that their
policies will have outside their borders.
For example, the debate about the Arctic National Wildlife Refuge in
Alaska is an international matter, one that affects the interests of various
indigenous peoples who depend upon the caribou (and its habitat) and who live
in both the United States and Canada.
The integrity of this wildlife resource is not being adequately
considered in the discussions about development of the Arctic National Wildlife
Refuge.
80. In
addition, though Governments may initiate and require environmental impact
assessments, too often indigenous peoples’ perspectives and values are
overlooked in State efforts to mitigate or minimize environmental
degradation. Other failures to protect
the integrity of indigenous lands, territories and resources include
transboundary pollution, dumping of hazardous or toxic waste, ocean dumping,
ozone layer depletion, militarization and diminishing supplies of fresh water.
81. The
profound, highly complex and sensitive relationship that indigenous peoples
have to their lands, territories and resources must be taken into account in
protecting the integrity of their environment from degradation. Again it includes social, economic, cultural
and spiritual dimensions which must not be overlooked in the present
discussion. Cultures that have
flourished as an integral part of the environment cannot continue to tolerate
disruption. The dependence of indigenous
peoples upon the integrity of their lands, territories and resources remains a
highly significant factor.
J. Land
and resource use and management, and internal self‑determination
regarding indigenous lands, territories
and resources
82. An
important dimension in affirming indigenous land rights is the exercise of a
measure of control over lands, territories and resources by indigenous peoples
through their own institutions. Though
rights to lands, territories and resources may be affirmed, the exercise of
internal self‑determination, in the form of control over and decision‑making
concerning development, use of natural resources, management and conservation
measures, is often absent. For example,
indigenous people may be free to carry out their traditional economic
activities such as hunting, fishing, trapping, gathering or cultivating, but
may be unable to control development that may diminish or destroy these
activities.
83. This
section has briefly surveyed a number of the problems that face both
Governments and indigenous peoples. The
following section provides some examples of efforts to resolve some of these
contemporary problems, with a view to finding solutions for the future.
IV. ENDEAVOURS TO RESOLVE INDIGENOUS LAND ISSUES
AND PROBLEMS
84. There are many positive and practical
examples of advances worldwide regarding indigenous land rights; only a few can
be noted in this working paper. Most of
these developments represent a change in philosophy, a slight retreat from the
orientation which denied the rights of indigenous peoples towards a modern
human rights programme that is beginning to embrace the values, perspectives
and philosophies of indigenous peoples.
However, no tidal change has taken place. Despite the advances and positive developments,
urgent problems remain.
85. It may
be useful to suggest some of the objectives for any endeavours to resolve
indigenous land issues and problems.
While this list may be found lacking and might well be supplemented by
any thoughtful person, nevertheless these appear to be some of the more
important objectives that States and others might seek to achieve in relation
to indigenous peoples and their lands and resources. These objectives are based generally upon the
core values discussed in paragraph 10 above.
(i)
To
ensure that indigenous peoples have land and resources sufficient for their
survival, development and well‑being as distinct peoples and cultures,
including, so far as possible, their traditional cultural and sacred sites;
(ii)
To
correct in a just manner the wrongful taking of land and resources from
indigenous peoples;
(iii)
To
avoid the creation of refugees or landless communities and to avoid the
involuntary displacement of individuals or communities;
(iv)
To
preserve the security and territorial integrity of States;
(v)
To
resolve and avoid uncertainty of land and resource ownership, and to avoid
conflict, instability and violence in relation to indigenous rights to lands
and resources;
(vi)
To
assure the rule of law, non‑discrimination and equality before the law in
regard to indigenous peoples and their rights to lands and resources, while
recognizing the right of indigenous peoples to exist as distinct cultures with
certain unique rights;
(vii)
To
assure that all lands and resources are utilized in a sustainable and
ecologically sound manner.
These objectives, and those that may be suggested by
others, may be useful for assessing the value and appropriateness of proposed
principles and other measures or endeavours relating to the rights of
indigenous peoples to lands and resources.
86. Positive
measures may be divided into five groups:
(a) judicial mechanisms; (b) mechanisms for negotiation;
(c) constitutional reform and framework legislation; (d) indigenous
peoples’ initiatives; and (e) human rights standards.
A. Judicial
mechanisms
87. In the
sections dealing with the failure to acknowledge claims and the discriminatory
policies that persist with regard to indigenous land issues, there was brief
mention of the difficulties that indigenous peoples face with respect to
judicial mechanisms by which they can secure their rights. This working paper will briefly survey and
evaluate a few of the judicial actions already taken by indigenous peoples and
consider the future of such courses of action.
88. Significant
cases in both the domestic and international arenas have had mixed results.
Between the 1933 decision of the Permanent Court of International Justice
(Eastern Greenland) and the Western Sahara decision of the International Court
of Justice in 1975, it is clear that legal thought had evolved with regard to
the place of indigenous peoples. The
Marshall decisions of the United States Supreme Court have been interpreted as
being both good and bad: good in the
sense that Marshall insisted upon the recognition of Indian land rights and the
right to self‑government; however, Marshall’s construction of these rights was
within the framework of the doctrine of discovery.
89. An
example of the mixed results or limitations of judicial mechanisms is the Mabo
case in Australia. This decision was
positive in that it denounced the doctrine of terra nullius. However, from the perspective of Aboriginal
peoples in Australia, the decision did not remove all of the cultural biases,
nor did it flesh out or fully examine the assumed State authority and power to
determine the extent of indigenous land rights.
Judges, like others, are likely to be fearful of the unknown cost of
resolving these issues. Hence, there is
an apparent tendency to ensure that openings for interpretation remain. This is evident in recent actions prompted by
another case before the Australian High Court.
In Wik Peoples v. Queensland, in December 1996, the High
Court of Australia found that native title was not necessarily removed or
extinguished by pastoral leases.[67] Pastoral
leases cover vast areas of land and are essentially interests granted by
government for the purpose of raising sheep, cattle or other animals. This case, combined with the Mabo
decision, led to the enactment of the Native Title Amendment Act in 1998, which
may be exercised to extinguish indigenous or native title and thus practically
negate most of the legal rights recognized by the Court. This has been discussed above in
paragraphs 46 and 64.
90. For a
limited class of cases and a limited number of indigenous peoples, United
States law provides a means for the return of indigenous lands. The Supreme Court has decided that the title
to land taken in violation of a certain Act of Congress remains the property of
the Indian owners. However, practically
no Indian lands have actually been returned by action of the United States
courts. Numerous suits for the recovery
of lands have been filed and in several cases negotiation and legislation have
led to the return of significant areas of land to a few Indian tribes.
91. Another
example of a judicial or quasi‑judicial mechanism is the Waitangi Tribunal in
New Zealand, which is a statutory body created to address claims by Maori of
breaches of the Treaty of Waitangi.[68] The decisions of the Waitangi Tribunal have
been credited with helping to resolve some long‑standing Maori land
grievances. However, there have also
been criticisms and complaints based upon the Tribunal’s limited power, as well
as of some decisions and negotiated settlements reached in connection with cases
before the Tribunal.
92. At present,
it is safe to say that the use of judicial mechanisms may be risky because of
the problem of different interpretive tools, the subjective and highly
political nature of these State‑chartered forums, and continuing cultural
biases demonstrated by Governments. The
mechanisms referred to above represent some examples of the judicial mechanisms
which exist and have been employed.
Governments and indigenous organizations will be called upon to supply
further information about positive measures with regard to judicial mechanisms.
B. Mechanisms
for negotiation
93. Mechanisms
for negotiation may allow for a broader set of issues, concepts and
perspectives to explore the accommodation of indigenous peoples’ rights to
lands. They may also provide a greater
opportunity for both sides to achieve or create genuine understanding and to
engage in confidence‑building.
Negotiation, if undertaken with full respect for and recognition of the
fundamental rights of indigenous peoples, can also contribute to ongoing and
lasting political and legal relationships.
Such an alternative may prove to be more constructive to both
Governments and indigenous peoples, as well as others.
94. A
recent example of the creation of an international mechanism for negotiation is
the formation of the Arctic Council, which includes eight Arctic‑rim States and
representatives of the Association of Small Nations of the Russian North, the
Nordic Saami Council and the Inuit Circumpolar Conference. The basic document of this new body also
provides for the direct participation of other indigenous peoples’
organizations from this geographic region.
Though indigenous peoples are not entirely pleased with the few
qualifications put into the document, they are nonetheless at the negotiating table
and able to register their concerns relating to environmental and development
matters.
95. Another
international mechanism was the procedure that resulted in the negotiated peace
agreements in Guatemala. Within this
process, the United Nations played a role in the conclusion of the Agreement on
the Identity and Rights of Indigenous Peoples.
The Agreement includes far‑reaching provisions on indigenous lands,
restitution, acquisition of land and other measures.[69]
96. The
Government of New Zealand points out that it has made significant progress over
the past 10 years in settling by negotiation well‑founded claims arising from
historical breaches of the Treaty of Waitangi.
Settlements generally include a formal apology from the Government for
breaching the Treaty, the transfer of cash and assets, and recognition of the
interest of the claimant group in particular conservation sites and species
that are of special significance to them.
The Government further states that, as a result of direct negotiations,
historical grievances have been resolved in an area covering more than half of
New Zealand, all historical claims over commercial fisheries have been settled,
and to date over $500 million has been provided as Treaty settlements
redress.[70]
97. In Canada,
the British Columbia Treaty Commission was established by Canada, the
Government of British Columbia and the First Nations Summit (an organization of
indigenous First Nations), with a mandate to facilitate the negotiation of
modern treaties in the province of British Columbia. The Commission consists of five
commissioners: two nominated by the
Summit, one nominated by each of the federal and provincial Governments, and a
Chief Commissioner chosen by all three principals. The Commission opened its doors in
December 1993. As of October 1997,
the Commission had accepted statements of intent to negotiate treaties from 51
First Nations (representing over 70 per cent of the First Nations in
the province), had made annual funding allocations to First Nations for
participation in negotiations and had declared 42 negotiation tables as
ready. According to the Government of
Canada, as of May 1998, more than 30 framework agreements had been signed,
and these First Nations had entered into “agreement‑in‑principle negotiations”.
98. Recent
negotiated agreements include the Nunavut Agreement (creating a new territory
in northern Canada) and a number of other agreements with First Nations in
Canada. According to the Government, 12
comprehensive land claims agreements have been settled since the announcement
of the Federal Government’s comprehensive claims policy in 1973. The Nisga’a Agreement between the Nisga’a
First Nation and British Columbia went into effect on 11 May 2000. The agreement recognizes Nisga’a rights to
approximately 2,000 square kilometres of land and acknowledges their rights to
self‑government in that territory. The
Government of Canada expects the Nisga’a Agreement to set a precedent that will
be used to resolve approximately 50 similar claims brought by Indian peoples in
Canada. The Nisga’a Agreement is the
thirteenth land claim settled in Canada.
However, less than a week after it went into effect, members of the
British Columbia Liberal Party brought suit in the British Columbia Supreme Court
to challenge the agreement as violating Canada’s Constitution. Regardless of the outcome there, this case is
likely to be appealed to Canada’s Supreme Court, thus creating a period of
uncertainty in other negotiations.[71] A number of indigenous groups are also opposed
to using the Nisga’a Agreement as a model for future settlements, stating that
it is unacceptable for reasons ranging from the extinguishment of aboriginal
title on all but 8 per cent of Nisga’a traditional territory, to imbalances
between Canadian and Nisga’a access to resources and rights of way.[72]
99. Before
the Nisga’a Agreement went into effect, the six most recently completed
Canadian agreements were with the Yukon First Nations and included self‑government provisions similar to those in the Nisga’a
Agreement. The Federal Government has
expressed its commitment to maintaining momentum on claims settlement and in
1998 reported participating in approximately 70 modern treaty
negotiations. In its submission to the
Special Rapporteur, the Government provided the following observations:
“Steady progress is being
made. Settling claims does take time as
it is important to get it right:
treaties are solemn and legally‑binding documents which are protected by
the Constitution of Canada. It also
takes time because negotiations are complex, involving many stakeholders and
intersecting jurisdictions. In Canada,
there are three parties at the table:
the Federal Government, the provincial (or territorial) government, and
the Aboriginal group. Separate federal‑provincial
discussions are required on many key aspects such as cost‑sharing and
jurisdictional arrangements, while a very wide range of
lands and resources and self‑government
issues are on the table. Public and
private legal interests must be dealt with fairly, and negotiations are often
complicated by several Aboriginal groups claiming the same area.”
100. The
Government of Canada drew particular attention to negotiated settlements of
land claims as a positive and practical measure for achieving desirable goals
with respect to indigenous peoples’ relationship to lands and resources. The Government pointed out in its submission:
“Land settlements provide many
opportunities, in that much can and has been done within the claims negotiation
process to further the goals of Aboriginal people for a continuing relationship
to lands and resources in their traditional territories. Land claims agreements in Canada have
provided Aboriginal groups with rights and benefits which include: full ownership of certain lands in the area
covered by the settlement; guaranteed wildlife harvesting rights; guaranteed
participation in land, water, wildlife and environmental management throughout
the settlement area (typically by membership on committees, boards or other
decision‑making bodies); financial compensation; resource revenue‑sharing;
specific measures to stimulate economic development; and a role in the
management of heritage resources and national parks of the settlement
area. Co‑management arrangements have
reflected the principle of parity of membership between Aboriginal and
government representatives; and have respected and incorporated the traditional
knowledge of Aboriginal people, as well as scientific knowledge.
“Financial benefits in settlement
agreements can provide Aboriginal communities with much needed capital for
investment and economic growth, while increased training and educational
opportunities can contribute to self‑sufficiency. Royalty sharing arrangements can provide an
important ongoing source of revenue. In
these and other ways, modern treaties provide an important springboard to
economic and political growth.”
101. The
Government of Canada’s efforts in the treaty negotiations and claims policy
proceedings are positive steps towards resolving that country’s indigenous land
claims. However, a number of issues
regarding the implementation of both processes appear to require further
attention. The concern most often raised
by both indigenous groups and United Nations human rights bodies is Canada’s
continuing policy of extinguishing aboriginal title.[73] Another reported concern is that the treaty
negotiation process as currently implemented provides no protection for the
aboriginal lands and resources at issue during the lengthy proceedings. One indigenous group provided evidence which,
it argues, demonstrates that any attempt to seek such protection from the
courts would result in the provincial government terminating negotiations, and
that the courts of British Columbia were extremely unlikely to provide such
protection in any case. Furthermore,
this indigenous group stated its understanding that a termination of
negotiation resulting from pursuit of judicial remedies would also make that
First Nation liable, at that point, for repayment of the loans made to it by
the State to participate in the negotiation process. It was apparently intended to pay off these
loans, totalling approximately US$ 75 million to date for First
Nations in British Columbia, out of any settlement negotiated through the
State’s treaty process. This indigenous
group also argued that the British Columbia Treaty Commission is unable to
fulfil its responsibility to remain independent and neutral, stating that it is
funded wholly by the Government and has no power to compel the State to
recognize and protect aboriginal lands and rights.[74] Another
group stated that a significant number of indigenous nations and people are not
participating in the negotiations process, and that the avenues available to
them for the recognition and protection of their indigenous rights to land,
including the Comprehensive Claims Policy, remain unacceptable.[75]
102. The
friendly settlement procedure of the Inter‑American Commission on Human Rights
has provided a context for the negotiation of indigenous land rights. When a human rights petition is filed with
the Commission, the Commission has the competence, pursuant to the American
Convention on Human Rights, to “place itself at the disposal of the parties
concerned with a view to reaching a friendly settlement of the matter on the
basis of respect for human rights recognized in [the] Convention”. In March of 1998, the Commission announced
the settlement of a land claim between the Government of Paraguay and the
indigenous communities of Lamenxay and Riachito pursuant to an agreement to
transfer a large area of land to the Indian claimants. This settlement is the first agreement in the
inter‑American human rights system which restores land rights to an indigenous
community. In another case, in February
1999, the Commission formally oversaw the beginning of formal negotiations
between the Government of Belize and the Maya Indian people of southern Belize. The context of the negotiations is a long
campaign by Maya leaders to secure recognition of their lands. These indigenous peoples had found themselves
without any formal, legal rights to the lands where they have traditionally
lived. The land is regarded by the
Government as simply “public” land.
Since 1993, the Government had secretly granted 17 logging concessions
to log more than 500,000 acres of Maya land, and had granted oil and gas
concessions covering practically the entire area, all without consultation with
the Maya. The Maya filed legal
proceedings in the courts of Belize without success and in 1998 filed a
petition with the Inter‑American Commission on Human Rights, asserting that the
concessions and the failure to recognize Maya land rights were a violation of
their human rights. The Government was
initially willing to negotiate with the Maya under the auspices of the
Inter-American Commission, but, after months of fruitless efforts to make
progress with the discussions, the friendly settlement process was
terminated. However, largely as a result
of the Commission’s oversight of the process and subsequent investigation of
the case (which is pending), discussions with the Maya have begun again.
103. Finally,
the substantive, constructive and formal dialogue at the international,
national and local levels concerning international indigenous human rights
standards may prove to be a fruitful method or mechanism for creating
understanding about the values and perspectives of indigenous peoples. Such a process of education will be necessary
for effective steps to be taken towards resolving long‑standing conflicts and
understanding the implications of accommodating the competing rights and
interests of indigenous peoples and States.
C. Constitutional
reform and legislation
104. A
positive step towards securing indigenous rights has been the increasing
practice of States to recognize and protect, to varying degrees, indigenous
land rights through constitutional amendments, specific legislation, and
sections within more general laws. A
particularly notable example in recent years is the Constitution of Brazil,
adopted in 1988. This Constitution
incorporates significant provisions calling for the demarcation and protection
of indigenous lands. Other Central and
South American countries whose Constitutions now recognize indigenous
possession of communal lands or natural resources, and/or guarantee the
reservation or demarcation of such lands, are Argentina, Bolivia, Ecuador,
Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru and Venezuela. Additionally, the Constitutions of Bolivia,
Colombia and Peru recognize indigenous peoples’ right to self-government over
their territories so long as that practice is in accord with the State
Constitution and/or laws. Belize, on the
other hand, is an example of a South American State with a significant
indigenous population that has not yet incorporated protection for indigenous
land rights into its Constitution or laws.
A positive example in North America is Canada, whose Constitution Act of
1982, section 35, gives constitutional protection to then‑existing aboriginal
land rights; and land claim settlements, as treaties, are now similarly given
constitutional protection. In Malaysia,
the Federal Constitution of 1957 gives the national Government legislative jurisdiction
over the welfare of aboriginal peoples and provides for the protection,
well-being and advancement of aboriginal peoples, including through the
reservation of land. The Constitution of
the Philippines recognizes indigenous cultural communities and indigenous
rights to ancestral lands.
105. Some
countries have taken more specific action to return land to indigenous peoples
or to recognize or respect indigenous land areas. Examples include the return of land to
indigenous peoples in Argentina.[76] Under constitutional reform laws of 1994, the
Government has now returned almost 4 million acres to some of Argentina’s
600,000 indigenous peoples and reportedly plans to hand over 988,400 more acres
by 1999. In Colombia, similar return of
land has taken place in recent years.
Information about the success of these measures and the problems
associated with them deserve close attention.
106. The
Greenland Home Rule Act of November 1978 is probably one of the best examples
of constructive framework legislation to accommodate the rights and aspirations
of indigenous peoples. The rights of
ownership to lands in Greenland have been arranged in a very distinct fashion,
consistent with the Greenlandic Inuit land tenure systems. One significant feature of the Act is the
granting to the Inuit of authority to make decisions concerning the use of the
lands. In particular, with regard to
development activities, the Greenland Home Rule Government, or Landsstyret,
which is elected by the Parliament, has veto power over development activities.
107. A number
of other countries have passed legislation specifically designed to recognize
or protect indigenous rights to lands and resources. Brazil’s “Statute of the Indian” in article 6
of the Codigo Civil recognizes three different types of Indian lands and
states that all three are subject to the process of demarcation by the
executive branch. Brazil’s Directive 24
authorizes FUNAI (Fundacao Nacional do Indio) to implement procedures to assist
indigenous peoples in retaining the value of their land’s natural resources
through environmental degradation prevention measures, appropriate ecological
technology and educational programmes.
In 1993, Chile passed a law regarding a number of indigenous issues,
including providing for the recognition, protection and development of
indigenous peoples’ lands and creating a fund which provides subsidies to
assist indigenous communities and individuals in acquiring land and water
rights.[77] Law 6172 of November 1977 addresses the land
rights of indigenous peoples in Costa Rica. In Honduras, Decree 37-99 of March 1999
authorizes the Executive to acquire private property in different areas of the
country at market value for use in fulfilling the Government’s commitment to
rural groups and native and aboriginal peoples.
The Statute of Autonomy for the Coastal Regions of Nicaragua recognizes
communal property such as the land, waters and forests traditionally belonging
to indigenous communities on the Atlantic coast. In Venezuela, Decree 3273 of January 1999
regulates the recognition of property on lands traditionally occupied by
indigenous communities. In Australia,
the Native Title Act of 1993 created a framework and mechanism by which
indigenous peoples in Australia could secure land rights, but was undermined by
the 1998 Native Title Act Amendments, which have been found to extinguish or
impair indigenous rights (see paras. 31 and 46 above). Malaysia’s current Aboriginal Peoples Act
dates from 1954 and was revised in 1967 and 1974. Under the Malaysian legal system, certain
lands are reserved for aboriginal peoples and they have recognized rights to
hunt and gather over additional lands.
The Philippine Congress passed the Indigenous Peoples Right Act in 1997,
creating the National Commission on Indigenous Peoples, which implements
policies, plans and programmes to promote and protect the rights and well-being
of Philippine indigenous peoples and indigenous cultural communities.
108. In
addition to legislation specifically or solely addressing indigenous rights,
indigenous land issues are becoming increasingly incorporated in more general
laws, a trend that is particularly visible in the agricultural and forestry
legislation of Central and South America.
One of the more extensive examples involves the agricultural, forestry
and ecological and environmental laws of Mexico, which include numerous
provisions for the recognition and protection of indigenous peoples’ rights to
land, resources and development.
(However, there appears to be a potential for these laws to result in
conflicting implementations, since some encourage the socio-economic
development of indigenous peoples through modernization and commercial
exploitation of forest resources, while others purport to recognize the traditional
uses of resources and the knowledge of indigenous peoples.) In Bolivia, Law 1715 of the National Service
of Agrarian Reform reaffirms the constitutional provisions regarding indigenous
peoples’ land rights and guarantees their rights to their “Tierras Comunitarias
de Origen” (original communal lands).
The Bolivian forestry law recognizes the rights of indigenous peoples to
forest on their lands, prohibits the State from granting forestry concessions
in areas where indigenous peoples are living and gives priority to indigenous
communities for the granting of forestry concessions in their areas. In Costa Rica, the rights of Indian
communities are included in Decree 27388-MINAE of September 1998 as a principle
to be considered in planning for the use and management of forests. In Ecuador, article 38 of the Codificacion
de la Ley de Desarrollo Agrario provides that the State will protect the
lands assigned under the national agrarian reform to the development of
indigenous peoples, and states that indigenous peoples’ traditional ways of
life are to be incorporated in and coordinated with the national agrarian
reform institutions created to help with the economic development of rural
areas. In Nicaragua, the Law to Protect
Agrarian Property guarantees fully the acquired rights to land of various
groups, including the Indian communities on the Atlantic coast.
109. Except as
discussed elsewhere in this working paper, information has not been received
about the extent to which the constitutional and legislative enactments listed
above have actually been implemented and the extent to which they have proved
effective in reaching the objectives set out in paragraph 85 above. A comparative study of legislation and
constitutional provisions regarding indigenous land rights worldwide would be a
valuable undertaking.
D. Indigenous peoples’ initiatives
110. It must be noted that indigenous peoples
themselves are initiating various projects and programmes with regard to their
lands, territories and resources which contribute to the safeguarding and
promotion of their rights. Examples
include management and co‑management of resources in Alaska and elsewhere. Indigenous peoples are also contributing to
global and national environmental protection initiatives. For example, the role of indigenous non‑governmental
organizations at the United Nations Conference on Environment and Development
was critical to the drafting and adoption of chapter 26 of Agenda 21. This is a positive contribution by indigenous
peoples to the world community.
111. Indigenous
peoples in certain countries have initiated mapping projects as a means for
documenting and specifying their traditional land ownership and land use
practices. This may prove to be an
important means for creating broader awareness and understanding of indigenous
land ownership and for creating a basis for eventual legal recognition and
protection of these land and resource rights.
In Belize, the mapping project of the Maya Indian people of the Toledo
district resulted in the publication in 1998 of the Maya Atlas: The Struggle to Preserve Maya Land in
Southern Belize, which is said to be the first indigenous‑produced atlas in
the world. The Maya Atlas,
produced by the Toledo Maya Cultural Council and the Toledo Alcaldes
Association, documents the Mopan and Ke’kchi Maya’s traditional and current use
of their land and includes a unique description of Maya history, culture, land
tenure and socio‑economic activities.
The Maya Atlas contains maps of every Maya village in southern
Belize - each one hand drawn by Maya community researchers who interviewed
every household in the village. The atlas is part of an effort to win legal
protection for Maya land. Mapping by
indigenous peoples as a means of clarifying land rights is also being done in
other countries. The role of indigenous
peoples in the Arctic Council, which primarily concerns itself with
environmental protection and development in the Arctic, is another useful
example in this respect.
E. Human
rights standards and mechanisms
112. The
existing and emerging norms and minimum standards contained in the
Rio Declaration, the Convention on Biological Diversity, ILO Convention
No. 169, the proposed Organization of American States American declaration
on the rights of indigenous peoples and the draft United Nations declaration on
the rights of indigenous peoples should all be seen as a way to resolve the
problems between States and indigenous peoples.
The various mechanisms established for dealing with human rights complaints
have been used to some extent by indigenous peoples.
113. In
addition, the emerging human rights norms relating to the right to development,
intergenerational rights, the right to peace and the right to a safe and
healthy environment are areas in which indigenous peoples are beginning to
influence old thinking and bring about the progressive development of standards
that are more sensitive, responsive and useful to indigenous peoples and
humankind generally. The conclusions of
the report of the Bruntdland Commission, Our Common Future, should
not be omitted from this review of change and development of human rights
standards. It gave recognition to the
unique situation of indigenous peoples:
“The starting point for a just and humane
policy for such groups is the recognition and protection of their traditional
rights to land and other resources that sustain their way of life ‑ rights they
may define in terms that do not fit into standard legal systems. These groups’ own institutions to regulate
rights and obligations are crucial for maintaining harmony with nature and the
environmental awareness characteristic of the traditional way of life. Hence, the recognition of traditional rights
must go hand in hand with measures to protect the local institutions that
enforce responsibility in resource use.
And this recognition must also give local communities a decisive voice
in the decisions about resource use in their areas.”[78]
V. CONCLUSIONS
114. This
final working paper illustrates the need for a flexible approach to the
consideration of indigenous peoples and their relationship to land. It must be acknowledged that an important
evolution is taking place. The fact that
dozens of countries have adopted constitutional and legislative measures
recognizing in various degrees the legal rights of indigenous peoples to their
lands and resources is powerful evidence that such legal measures are
consistent with domestic legal systems and that they are needed. The ongoing development of indigenous
peoples’ rights to lands, territories and resources must be seen as an
opportunity for both indigenous peoples and States to contribute to the
progressive development of human rights standards. It must be acknowledged that legal concepts
and rights and, indeed, indigenous peoples themselves cannot be frozen in
time. Indigenous communities and
societies change and evolve like all other societies.
115. This
final working paper should be regarded, above all else, as evidence of the
urgency of indigenous land issues. There
is an urgent need to find solutions to the long‑standing problems that exist
between Governments and indigenous peoples.
The very survival of indigenous peoples is at risk owing to the
continuing threats to their lands, territories and resources.
116. The
Special Rapporteur has had the privilege to visit a great number of indigenous
communities in many parts of the globe and to assess the serious land rights
problems which exist . She has also had
the advantage of studying the report of the Expert Seminar on Practical
Experiences Regarding Indigenous Land Rights and Claims, held in accordance
with Commission on Human Rights resolution 1994/29 of 4 March 1994, Economic
and Social Council decision 1994/248 of 22 July 1994 (E/CN.4/Sub.2/AC.4/1996/6)
and General Assembly resolution 49/214 of 23 December 1994. This report, along with much useful
information and analysis, provides many useful and constructive conclusions and
recommendations that deserve close attention.
Some of these conclusions and recommendations are repeated here.
117. Indigenous
peoples have a distinctive and profound spiritual and material relationship
with their lands and with the air, waters, coastal sea, ice, flora, fauna and
other resources. This relationship has
various social, cultural, spiritual, economic and political dimensions and
responsibilities.
118. Historically, indigenous peoples in most
parts of the world have been deprived of their lands and resources in whole or
in part through many unjust processes, including military force, unlawful
settlements, forcible removal and relocation, legal fraud and illegal
expropriation by the Government.
119. Indigenous
societies in a number of countries are in a state of rapid deterioration and
change due in large part to the denial of the rights of the indigenous peoples
to lands, territories and resources.
120. One of
the most widespread contemporary problems is the failure of States to recognize
the existence of indigenous land use, occupancy and ownership, and the failure
to accord appropriate legal status and legal rights to protect that use,
occupancy or ownership.
121. In some
countries, indigenous communities do not have the legal capacity to own land,
or do not have the capacity to own land collectively.
122. Aboriginal
title, by which indigenous land is in many cases held, is often subject to the
illegitimate use of State power to extinguish such title, in contrast to the
legal protection and rights that, in most countries, protect the land and
property of other citizens. This single
fact probably accounts for the overwhelming majority of human rights problems
affecting indigenous peoples.
123. In those
countries with a body of law concerning indigenous peoples, the most
significant problems arise because of discriminatory laws and legal doctrines
that are applied regarding indigenous peoples, their lands and resources.
124. Such
discriminatory doctrines include the doctrine of terra nullius, the
doctrine that indigenous land title can be extinguished without due process or
compensation, the doctrine of “plenary power” and the doctrine that treaties
with indigenous peoples can be violated or abrogated without any remedy.
125. In terms
of frequency and scope of complaints, the greatest single problem today for
indigenous peoples is the failure of States to demarcate indigenous lands.
126. The
failure of States to implement or enforce existing laws for the protection of
indigenous lands and resources is also a widespread problem.
127. Claims
processes that are improper, grossly unfair or fraudulent have been a severe
problem for indigenous peoples in certain countries.
128. The
expropriation of indigenous lands and resources for national development is a
growing and severe problem. Development
projects are frequently undertaken on indigenous lands and territories without
indigenous consent or even consultation.
129. Removal
and relocation of indigenous peoples is a continuing problem.
130. Other
significant problems that have been identified are: programmes to allot indigenous lands to
individuals; settlement programmes on indigenous lands; the practice of
requiring that indigenous land be held in trust by the State; programmes that
use indigenous lands as collateral for loans; adverse management of sacred and
cultural sites by States; the failure of States and others to protect the
environmental integrity of indigenous lands and resources; and failure to
accord indigenous peoples an appropriate right to manage, use and control
development of their lands and resources.
131. A number
of positive, practical measures for resolving indigenous land issues have been
identified. The most encouraging and
productive of these measures appear to be those that are based on fair and
voluntary negotiations between the State and the indigenous people, either at
the national level or under the auspices of an international body.
132. The
existence of a fair constitutional and legal system, including a fair judicial
system, able to guarantee due process of law, is an important framework for the
success and implementation of land settlement processes. In some countries experience has shown that
the establishment of fair judicial processes for the implementation of
treaties, agreements and other constructive arrangements with indigenous
peoples has been a useful means for encouraging respect for such agreements and
for the education of the indigenous and non‑indigenous communities.
133. For any
claim process to be effective in resolving indigenous land rights issues it
must be fundamentally just and fair.
134. Experience
has shown that the equitable and fair conclusion and implementation of
treaties, agreements and other constructive arrangements relating to land
between States and indigenous peoples can contribute to environmentally sound
and sustainable development for the benefit of all.
135. Governments
have a responsibility to ensure indigenous peoples have access to adequate
resources to research and negotiate their claims so that settlements are
equitable, just and enduring.
136. It is
important that practical effect be given to the spirit and intent of treaties
and agreements concerning lands and resources.
This requires a willingness by the parties to act as partners, not
adversaries, as well as a clear understanding by all parties of the spirit and
intent of treaties and agreements concerning lands and resources.
137. In many
countries, there is a need for general or framework legislation to recognize
and give legal protection to indigenous lands and resources. In some countries, there is a need to reform
the relevant sections and clauses of the Constitution in order to achieve a
desirable level of legal protection for indigenous lands and resources.
138. ILO
Convention No. 169 concerning Indigenous and Tribal Peoples in Independent
Countries (1989) is regarded by some States and many indigenous peoples as
articulating some minimum standards respecting indigenous land rights.
139. The draft United Nations declaration on the
rights of indigenous peoples, as adopted by the Sub‑Commission on the Promotion
and Protection of Human Rights (formerly the Sub‑Commission on Prevention of
Discrimination and Protection of Minorities), presents an opportunity for
States to adopt an important international instrument reflecting a broad consensus
among indigenous peoples and experts about indigenous land and resource rights.
VI.
RECOMMENDATIONS
140. Countries
where such legislation does not exist should enact legislation, including
special measures, to recognize, demarcate and protect the lands, territories
and resources of indigenous peoples in a manner that accords legal protection,
rights and status at least equal to those accorded other lands, territories and
resources in the country.
141. Such
legislation must recognize indigenous peoples’ traditional practices and law of
land tenure, and it must be developed only with the participation and free
consent of the indigenous peoples concerned.
142. Special
measures regarding indigenous land and resources must not deprive indigenous
peoples of legal rights with respect to land and resources that other groups
and individuals in the country enjoy.
143. Within
the legal context of each country, consideration must be given to the need to
reform the relevant portions of the Constitution in order to assure the
necessary level of legal protection for indigenous lands and resources and
particularly to assure that indigenous rights to lands and resources are not
subject to invasion or diminution by the Government.
144. Governments
should formally renounce discriminatory legal doctrines and policies which deny
human rights or limit indigenous land and resource rights. In particular, they should consider adopting
corrective legislation, constitutional reforms or corrective policies, as may
be appropriate, within the International Decade of the World’s Indigenous
People, regarding the following:
(a) The doctrines of discovery and terra
nullius;
(b) The doctrine that indigenous communities
do not have the capacity to own land or to own land collectively;
(c) The doctrine that indigenous land, title
or ownership may be taken or impaired by the State or third parties without due
process of law and adequate and appropriate compensation;
(d) Doctrines or policies that indigenous
lands must be held in trust regardless of the will of the indigenous peoples
concerned;
(e) Doctrines and policies that unilaterally
effect an extinguishment of indigenous land rights, title or ownership;
(f) Policies which exclude some indigenous
peoples from the land claims processes established by the State.
145. Countries
must abjure power with respect to indigenous peoples, their lands and resources
that is not limited by respect for human rights and rights generally applicable
in the country.
146. Rights
and property protections must not be diminished or denied on the ground that
title or other interest is held in common or held by an indigenous people or
group rather than by an individual.
147. Governments
are encouraged to consider the establishment and use of impartial mechanisms,
including international mechanisms, to oversee and facilitate fair and
equitable resolutions of indigenous land and resource claims and the
implementation of land agreements.
148. Governments,
in consultation with indigenous peoples, should establish fair procedures for
reviewing, and taking corrective action in, situations in which indigenous land
or resources have been taken or rights to them extinguished through past
processes which are claimed or are found to be fundamentally unfair or
discriminatory.
149. In
consultation with indigenous peoples, States should each consider creating a
permanent capital fund which will generate sufficient funds for the purpose of
compensating indigenous peoples for the past taking of their lands and
resources, where return of the lands and resources or provision of equivalent
lands and resources is not possible.
150. Effective
measures should be provided by States for implementation, amendment and
enforcement of land settlements and agreements, and for dispute resolution.
151. States
and intergovernmental bodies, including organs and bodies of the United Nations
system should identify means for meeting the serious needs for training,
education and financial and technical resources so that indigenous peoples may
enter negotiation processes fully informed and technically equipped with
respect to the whole spectrum of implications of land rights negotiations. Training and education should also figure
prominently in agreements negotiated.
152. The recently
established Permanent Forum for Indigenous Peoples should consider playing a
constructive role regarding problems pertaining to land and resource rights and
environmental protection. In particular,
consideration should be given to the following:
(a) The creation of a fact‑finding body, with
a mandate to make site visits and to prepare reports concerning particular
indigenous land and resource issues;
(b) The creation of an indigenous land and
resource ombudsman or office which could provide response, mediation and
reconciliation services;
(c) The creation of a complaint mechanism or
procedure for human rights violations that pertain to indigenous land and
resource situations;
(d) The creation of a body with
“peace-seeking” powers to investigate, recommend solutions, conciliate, mediate
and otherwise assist in preventing or ending violence in situations regarding
indigenous land rights;
(e) The creation of a procedure whereby
countries would be called upon to make periodic reports with regard to their
progress in protecting the land and resource rights of indigenous peoples.
153. The
United Nations and its specialized agencies should consider providing technical
assistance to States and to indigenous peoples to contribute to the resolution
of land claims and other land and resource issues.
154. The
United Nations, its specialized agencies and other intergovernmental
organizations should assure that indigenous peoples’ cultural diversity,
traditional values and ways of life are protected in the implementation of
Agenda 21 and by the institutions established for its follow‑up.
155. The
United Nations High Commissioner for Human Rights should consider collecting
examples of indigenous land agreements in order to facilitate the promotion of
technical cooperation in this field.
156. States
should make best efforts to guarantee access to land on the part of indigenous
peoples who have been deprived of land or who lack sufficient land and depend
upon it for their survival, in order to guarantee their cultural and material
development.
157. Indigenous
peoples should participate in decision‑making and policy‑making regarding land,
resources and development at the international, regional, national and local
levels.
158. Governments,
in consultation with indigenous peoples, are encouraged to develop processes,
standards and methods for co-existence and the co-management of lands and
resources, with a view to accommodating indigenous peoples’ traditional
practices and law of land tenure.
159. The
discriminatory aspects of laws and policies relating to indigenous peoples and
their relationship to land should be at the forefront of the agenda of the
World Conference against Racism, Racial Discrimination, Xenophobia and Related
Intolerance, due to take place in South Africa in September 2001.
Notes
Annex[*]
Relevant legal standards and materials concerning
indigenous lands and resources
The
following compilation of standards and materials is comprised of the most
relevant portions of various legal instruments, draft legal instruments and
other relevant materials. It contains
only the main or most important legal materials that pertain to indigenous
peoples and their relationships to land, territories and resources. The purpose of this compilation is to facilitate
understanding of current international standards and of the draft principles
contained in the draft United Nations declaration on the rights of indigenous
peoples and the proposed Inter‑American Declaration on the Rights of Indigenous
Peoples.
Universal Declaration of Human Rights
Article 7
All
are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled
to equal protection against any discrimination in violation of this Declaration
and against any incitement to such discrimination.
Article 17
1. Everyone has the right to own property
alone as well as in association with others.
2. No one shall be arbitrarily deprived of
his property.
International Convention on the Elimination of All
Forms of Racial Discrimination
Article 5
In
compliance with the fundamental obligations laid down in article 2 of this
Convention, States Parties undertake to prohibit and to eliminate racial
discrimination in all its forms and to guarantee the right of everyone, without
distinction as to race, colour, or national or ethnic origin, to equality
before the law, notably in the enjoyment of the following rights:
...
(v) The right to own property alone as well
as in association with others;
...
Committee
on the Elimination of Racial Discrimination General
Recommendation
XXIII (51) on the rights of indigenous peoples,
adopted
at the Committee’s 1235th meeting, on 18 August 1997
1. In
the practice of the Committee on the Elimination of Racial Discrimination, in
particular in the examination of reports of States parties under article 9 of
the International Convention on the Elimination of All Forms of Racial
Discrimination, the situation of indigenous peoples has always been a matter of
close attention and concern. In this
respect the Committee has consistently affirmed that discrimination against
indigenous peoples falls under the scope of the Convention and that all
appropriate means must be taken to combat and eliminate such discrimination.
2. The Committee, noting that the General
Assembly proclaimed the International Decade of the World’s Indigenous People
commencing on 10 December 1994, reaffirms that the provisions of the
International Convention on the Elimination of All Forms of Racial
Discrimination apply to indigenous peoples.
3. The Committee is conscious of the fact
that in many regions of the world indigenous peoples have been, and are still
being, discriminated against and deprived of their human rights and fundamental
freedoms and in particular that they have lost their land and resources to
colonists, commercial companies and State enterprises. Consequently the preservation of their
culture and their historical identity has been and still is jeopardized.
4. The Committee calls in particular upon
States parties to:
(a) Recognize and respect indigenous distinct
culture, history, language and way of life as an enrichment of the State’s
cultural identity and to promote its preservation;
(b) Ensure that members of indigenous peoples
are free and equal in dignity and rights and free from any discrimination, in
particular that based on indigenous origin or identity;
(c) Provide indigenous peoples with
conditions allowing for a sustainable economic and social development compatible
with their cultural characteristics;
(d) Ensure that members of indigenous peoples
have equal rights in respect of effective participation in public life and that
no decisions directly relating to their rights and interests are taken without
their informed consent;
(e) Ensure that indigenous communities can
exercise their rights to practise and revitalize their cultural traditions and
customs and to preserve and to practise their languages.
5. The Committee especially calls upon
States parties to recognize and protect the rights of indigenous peoples to
own, develop, control and use their communal lands, territories and resources
and, where they have been deprived of their lands and territories traditionally
owned or otherwise inhabited or used without their free and informed consent,
to take steps to
return those lands and territories. Only when this is for factual reasons not
possible, should the right to restitution be substituted by the right to just,
fair and prompt compensation. Such compensation
should as far as possible take the form of lands and territories.
6. The Committee further calls upon States
parties with indigenous peoples in their territories to include in their
periodic reports full information on the situation of such peoples, taking into
account all relevant provisions of the Convention.
International Covenant on Civil and Political Rights
Article 27
In
those States in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with
the other members of their group, to enjoy their own culture, to profess and
practise their own religion, or to use their own language.
Human Rights Committee
General comment 23, on article 27 of the International
Covenant on Civil and Political Rights (fiftieth session, 1994)
...
3.2 The enjoyment of the rights to which
article 27 relates does not prejudice the sovereignty and territorial integrity
of a State party. At the same time, one
or other aspect of the rights of individuals protected under that article - for
example, to enjoy a particular culture - may consist in a way of life which is
closely associated with territory and use of its resources. This may particularly be true of members of
indigenous communities constituting a minority.
...
7. With regard to the exercise of the
cultural rights protected under article 27, the Committee observes that culture
manifests itself in many forms, including a particular way of life associated
with the use of land resources, especially in the case of indigenous
peoples. That right may include such
traditional activities as fishing or hunting and the right to live in reserves
protected by law. The enjoyment of those
rights may require positive legal measures of protection and measures to ensure
the effective participation of members of minority communities in decisions
which affect them.
International Labour Organization Convention No. 169
concerning
Indigenous and Tribal Peoples in Independent Countries
(1989)
Article 4
1. Special measures shall be adopted as
appropriate for safeguarding the persons, institutions, property, labour,
cultures and environment of the peoples concerned.
2. Such special measures shall not be
contrary to the freely-expressed wishes of the peoples concerned.
3. Enjoyment of the general rights of
citizenship, without discrimination, shall not be prejudiced in any way by such
special measures.
Article 7
The
peoples concerned shall have the right to decide their own priorities for the
process of development as it affects their lives, beliefs, institutions and
spiritual well-being and the lands they occupy or otherwise use, and to
exercise control, to the extent possible, over their own economic, social and
cultural development. In addition, they
shall participate in the formulation, implementation and evaluation of plans
and programmes for national and regional development which may affect them
directly.
Article 13
1. In applying the provisions of this Part
of the Convention Governments shall respect the special importance for the
cultures and spiritual values of the peoples concerned of their relationship
with the lands or territories, or both as applicable, which they occupy or
otherwise use, and in particular the collective aspects of this relationship.
2. The use of the term “lands” in articles
15 and 16 shall include the concept of territories, which covers the total
environment of the areas which the peoples concerned occupy or otherwise use.
Article 14
1. The rights of ownership and possession
of the peoples concerned over the lands which they traditionally occupy shall
be recognized. In addition, measures
shall be taken in appropriate cases to safeguard the right of the peoples
concerned to use lands not exclusively occupied by them, but to which they have
traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the
situation of nomadic peoples and shifting cultivators in this respect.
2. Governments shall take steps as
necessary to identify the lands which the peoples concerned traditionally
occupy, and to guarantee effective protection of their rights of ownership and
possession.
3. Adequate procedures shall be
established within the national legal system to resolve land claims by the
peoples concerned.
Article 15
1. The rights of the peoples concerned to
the natural resources pertaining to their lands shall be specially
safeguarded. These rights include the
right of these peoples to participate in the use, management and conservation
of these resources.
2. In cases in which the State retains the
ownership of mineral or sub-surface resources or rights to other resources
pertaining to lands, Governments shall establish or maintain procedures through
which they shall consult these peoples, with a view to ascertaining whether and
to what degree their interests would be prejudiced, before undertaking or
permitting any programmes for the exploration or exploitation of such resources
pertaining to their lands. The peoples
concerned shall wherever possible participate in the benefits of such
activities, and shall receive fair compensation for any damages which they may
sustain as a result of such activities.
Article 16
1. Subject to the following paragraphs of
this article, the peoples concerned shall not be removed from the lands which
they occupy.
2. Where the relocation of these peoples
is considered necessary as an exceptional measure, such relocation shall take
place only with their free and informed consent. Where their consent cannot be obtained, such
relocation shall take place only following appropriate procedures established
by national laws and regulations, including public inquiries where appropriate,
which provide the opportunity for effective representation of the peoples
concerned.
3. Whenever possible, these peoples shall
have the right to return to their traditional lands, as soon as the grounds for
relocation cease to exist.
4. When such return is not possible, as
determined by agreement or, in the absence of such agreement, through
appropriate procedures, these peoples shall be provided in all possible cases
with lands of quality and legal status at least equal to that of the lands
previously occupied by them, suitable to provide for their present needs and
future development. Where the peoples
concerned express a preference for compensation in money or in kind, they shall
be so compensated under appropriate guarantees.
5. Persons thus relocated shall be fully
compensated for any resulting loss or injury.
Article 17
1. Procedures established by the peoples
concerned for the transmission of land rights among members of these peoples
shall be respected.
2. The peoples concerned shall be
consulted whenever consideration is being given to their capacity to alienate
their lands or otherwise transmit their rights outside their own community.
3. Persons not belonging to these peoples
shall be prevented from taking advantage of their customs or of lack of
understanding of the laws on the part of their members to secure the ownership,
possession or use of land belonging to them.
Article 18
Adequate penalties shall be
established by law for unauthorized intrusion upon, or use of, the lands of the
peoples concerned, and Governments shall take measures to prevent such
offences.
Article 19
National
agrarian programmes shall secure to the peoples concerned treatment equivalent
to that accorded to other sectors of the population with regard to:
(a) The provision of more land for these
peoples when they have not the area necessary for providing the essentials of a
normal existence, or for any possible increase in their numbers;
(b) The provision of the means required to
promote the development of the lands which these peoples already possess.
Agenda 21
Report of the United Nations Conference on Environment
and Development,
Rio de Janeiro, 3-14 June 1992 (A/CONF.151/26 (vol. III))
Chapter 26, Recognizing and strengthening the role of
indigenous people and their communities
...
Basis for action
26.1 Indigenous people and their communities have
an historical relationship with their lands and are generally descendants of
the original inhabitants of such lands.
In the context of this chapter the term “lands” is understood to include
the environment of the areas which the people concerned traditionally
occupy. Indigenous people and their
communities represent a significant percentage of the global population. They have developed over many generations a
holistic traditional scientific knowledge of their lands, natural resources and
environment. Indigenous people and their
communities shall enjoy the full measure of human rights and fundamental
freedoms without hindrance or discrimination.
Their ability to participate fully in sustainable development practices
on their lands has tended to be limited as a result of factors of an economic,
social and historical nature. In view of
the interrelationship between the natural environment and its sustainable
development and the cultural, social, economic and physical well-being of
indigenous people, national and international efforts to implement
environmentally sound and sustainable development should recognize,
accommodate, promote and strengthen the role of indigenous people and their
communities.
26.2 Some of the goals inherent in the objectives
and activities of this programme area are already contained in such
international legal instruments as the ILO Indigenous and Tribal Peoples
Convention (No. 169) and are being incorporated into the draft universal
declaration on indigenous rights, being prepared by the United Nations Working
Group on Indigenous Populations. The
International Year of the World’s Indigenous People (1993), proclaimed by the
General Assembly in its resolution 45/164 of 18 December 1990, presents a
timely opportunity to mobilize further international technical and financial
cooperation.
Objectives
26.3 In full partnership with indigenous people
and their communities, Governments and, where appropriate, intergovernmental
organizations should aim at fulfilling the following objectives:
(a) Establishment of a process to empower
indigenous people and their communities through measures that include:
(i)
Adoption
or strengthening of appropriate policies and/or legal instruments at the
national level;
(ii)
Recognition
that the lands of indigenous people and their communities should be protected
from activities that are environmentally unsound or that the indigenous people
concerned consider to be socially and culturally inappropriate;
(iii)
Recognition
of their values, traditional knowledge and resource management practices with a
view to promoting environmentally sound and sustainable development;
(iv)
Recognition
that traditional and direct dependence on renewable resources and ecosystems,
including sustainable harvesting, continues to be essential to the cultural,
economic and physical well-being of indigenous people and their communities;
(v)
Development
and strengthening of national dispute-resolution arrangements in relation to
settlement of land and resource-management concerns;
(vi)
Support
for alternative environmentally sound means of production to ensure a range of
choices on how to improve their quality of life so that they effectively
participate in sustainable development;
(vii)
Enhancement
of capacity-building for indigenous communities, based on the adaptation and
exchange of traditional experience, knowledge and resource‑management
practices, to ensure their sustainable development;
(b) Establishment, where appropriate, of
arrangements to strengthen the active participation of indigenous people and
their communities in the national formulation of policies, laws and programmes
relating to resource management and other development processes that may affect
them, and their initiation of proposals for such policies and programmes;
(c) Involvement of indigenous people and
their communities at the national and local levels in resource management and
conservation strategies and other relevant programmes established to support
and review sustainable development strategies, such as those suggested in other
programme areas of Agenda 21.
Activities
26.4 Some indigenous people and their communities
may require, in accordance with national legislation, greater control over
their lands, self-management of their resources, participation in development
decisions affecting them, including, where appropriate, participation in the
establishment or management of protected areas.
The following are some of the specific measures which Governments could
take:
(a) Consider the ratification and application
of existing international conventions relevant to indigenous people and their
communities (where not yet done) and provide support for the adoption by the
General Assembly of a declaration on indigenous rights;
(b) Adopt or strengthen appropriate policies
and/or legal instruments that will protect indigenous intellectual and cultural
property and the right to preserve customary and administrative systems and
practices.
World Bank Operational Directive 4.20 (September 1991)
(Note: The
World Bank is in the process of revising Operational Directive 4.20)
Contents
15. The
development plan should be prepared in tandem with the preparation of the main
investment. In many cases, proper
protection of the rights of indigenous people will require the implementation
of special project components that may lie outside the primary project’s
objectives. These components can include
activities related to health and nutrition, productive infrastructure, linguistic
and cultural preservation, entitlement to natural resources, and
education. The project component for
indigenous people’s development should include the following elements, as
needed:
(a) Legal Framework ... (ii) the ability of
such groups to obtain access to and effectively use the legal system to defend
their rights. Particular attention
should be given to the rights of indigenous peoples to use and develop the
lands that they occupy, to be protected against illegal intruders, and to have
access to natural resources (such as forests, wildlife, and water) vital to
their subsistence and reproduction.
...
(c) Land Tenure. When local legislation needs strengthening,
the Bank should offer to advise and assist the borrower in establishing legal
recognition of the customary or traditional land tenure systems of indigenous
peoples. Where the traditional lands of
indigenous peoples have been brought by law into the domain of the State and
where it is inappropriate to convert traditional rights into those of legal
ownership, alternative arrangements should be implemented to grant long-term,
renewable rights of custodianship and use to indigenous peoples. These steps should be taken before the
initiation of other planning steps that may be contingent on recognized land
titles.
Preparation
17. If it
is agreed in the IEPS (Initial Executive Project Summary) meeting that special
action is needed, the indigenous peoples development plan or project component
should be developed during project preparation.
As necessary, the Bank should assist the borrower in preparing terms of
reference and should provide specialized technical assistance (see para.
12). Early involvement of anthropologists
and local NGOs with expertise in matters related to indigenous peoples is a
useful way to identify mechanisms for effective participation and local
development opportunities. In a project
that involves the land rights of indigenous peoples, the Bank should work with
the borrower to clarify the steps needed for putting land tenure on a regular
footing as early as possible, since land disputes frequently lead to delays in
executing measures that are contingent on proper land titles (see para. 15
(c)).
United Nations draft declaration on the rights of
indigenous peoples
Article 10
Indigenous
peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the
free and informed consent of the indigenous peoples concerned and after
agreement on just and fair compensation and, where possible, with the option of
return.
Article 12
Indigenous
peoples have the right to practise and revitalize their cultural traditions and
customs. This includes the right to
maintain, protect and develop the past, present and future manifestations of
their cultures, such as archaeological and historical sites, artifacts,
designs, ceremonies, technologies and visual and performing arts and
literature, as well as the right to the restitution of cultural, intellectual,
religious and spiritual property taken without their free and informed consent
or in violation of their laws, traditions and customs.
Article 13
Indigenous
peoples have the right to manifest, practise, develop and teach their spiritual
and religious traditions, customs and ceremonies; the right to maintain,
protect, and have access in privacy to their religious and cultural sites; the
right to the use and control of ceremonial objects; and the right to the
repatriation of human remains.
States
shall take effective measures, in conjunction with the indigenous peoples
concerned, to ensure that indigenous sacred places, including burial sites, are
preserved, respected and protected.
Article 25
Indigenous
peoples have the right to maintain and strengthen their distinctive spiritual
and material relationship with the lands, territories, waters and coastal seas
and other resources which they have traditionally owned or otherwise occupied
or used, and to uphold their responsibilities to future generations in this
regard.
Article 26
Indigenous
peoples have the right to own, develop, control and use the lands and
territories, including the total environment of the lands, air, waters, coastal
seas, sea-ice, flora and fauna and other resources which they have
traditionally owned or otherwise occupied or used. This includes the right to the full
recognition of their laws, traditions and customs, land‑tenure systems and
institutions for the development and management of resources, and the right to
effective measures by States to prevent any interference with, alienation of or
encroachment upon these rights.
Article 27
Indigenous
peoples have the right to the restitution of the lands, territories and
resources which they have traditionally owned or otherwise occupied or used,
and which have been confiscated, occupied, used or damaged without their free
and informed consent. Where this is not
possible, they have the right to just and fair compensation. Unless otherwise freely agreed upon by the
peoples concerned, compensation shall take the form of lands, territories and
resources equal in quality, size and legal status.
Article 28
Indigenous
peoples have the right to the conservation, restoration and protection of the
total environment and the productive capacity of their lands, territories and
resources, as well as to assistance for this purpose from States and through
international cooperation. Military
activities shall not take place in the lands and territories of indigenous
peoples, unless otherwise freely agreed upon by the peoples concerned.
States
shall take effective measures to ensure that no storage or disposal of
hazardous materials shall take place in the lands and territories of indigenous
peoples.
States
shall also take effective measures to ensure, as needed, that programmes for
monitoring, maintaining and restoring the health of indigenous peoples, as
developed and implemented by the peoples affected by such materials, are duly
implemented.
Article 29
Indigenous
peoples are entitled to the recognition of the full ownership, control and
protection of their cultural and intellectual property.
They
have the right to special measures to control, develop and protect their
sciences, technologies and cultural manifestations, including human and other
genetic resources, seeds, medicines, knowledge of the properties of fauna and
flora, oral traditions, literatures, designs and visual and performing arts.
Article 30
Indigenous
peoples have the right to determine and develop priorities and strategies for
the development or use of their lands, territories and other resources,
including the right to require that States obtain their free and informed
consent prior to the approval of any project affecting their lands, territories
and other resources, particularly in connection with the development,
utilization or exploitation of mineral, water or other resources. Pursuant to agreement with the indigenous
peoples concerned, just and fair compensation shall be provided for any such
activities and measures taken to mitigate adverse environmental, economic,
social, cultural or spiritual impact.
Proposed Inter-American declaration on the rights of
indigenous peoples
Approved by the Inter-American Commission on Human
Rights on 26 February 1997
Article VII.
Right to cultural integrity
1. Indigenous peoples have the right to
their cultural integrity, and their historical and archaeological heritage,
which are important both for their survival as well as for the identity of
their members.
2. Indigenous peoples are entitled to
restitution in respect of the property of which they have been dispossessed,
and where that is not possible, compensation on a basis not less favourable
than the standard of international law.
3. The States shall recognize and respect
indigenous ways of life, customs, traditions, forms of social, economic and
political organization, institutions, practices, beliefs and values, use of
dress, and languages.
Right to environmental protection
Article 13
1. Indigenous peoples have the right to a
safe and healthy environment, which is an essential condition for the enjoyment
of the right to life and collective well-being.
2. Indigenous peoples have the right to be
informed of measures which will affect their environment, including information
that ensures their effective participation in actions and policies that might
affect it.
3. Indigenous peoples shall have the right
to conserve, restore and protect their environment, and the productive capacity
of their lands, territories and resources.
4. Indigenous peoples have the right to
participate fully in formulating, planning, managing and applying governmental
programmes of conservation of their lands, territories and resources.
5. Indigenous peoples have the right to
assistance from their States for purposes of environmental protection, and may
receive assistance from international organizations.
6. The States shall prohibit and punish,
and shall impede jointly with the indigenous peoples, the introduction,
abandonment, or deposit of radioactive materials or residues, toxic substances
and garbage in contravention of legal provisions; as well as the production,
introduction, transportation, possession or use of chemical, biological and
nuclear weapons in indigenous areas.
7. When a State declares an indigenous
territory as protected area, any lands, territories and resources under
potential or actual claim by indigenous peoples, conservation areas shall not
be subject to any natural resource development without the informed consent and
participation of the peoples concerned.
Traditional forms of ownership and cultural
survival. Rights to land, territories
and resources
Article 18
1. Indigenous peoples have the right to
the legal recognition of their varied and specific forms and modalities of
their control, ownership, use and enjoyment of territories and property.
2. Indigenous peoples have the right to
the recognition of their property and ownership rights with respect to lands,
territories and resources they have historically occupied, as well as to the
use of those to which they have historically had access for their traditional
activities and livelihood.
3. (i) Subject to 3.ii, where property and user
rights of indigenous peoples arise
from rights existing prior to the creation
of those States, the States shall recognize the titles of indigenous peoples
relative thereto as permanent, exclusive, inalienable, imprescriptible and
indefeasible.
(ii) Such titles may only be changed by mutual
consent between the State and
respective indigenous peoples when they
have full knowledge and appreciation of the nature or attributes of such
property.
(iii) Nothing in 3.i shall be construed as
limiting the right of indigenous
peoples to attribute ownership within the
community in accordance with their customs, traditions, uses and traditional
practices, nor shall it affect any collective community rights over them.
4. Indigenous
peoples have the right to an effective legal framework for the protection of
their rights with respect to the natural resources on their lands, including
the ability to use, manage, and conserve such resources; and with respect to
traditional uses of their lands, interests in lands, and resources, such as
subsistence.
5. In the event that ownership of the minerals
or resources of the subsoil pertains to the State or that the State has rights
over other resources on the lands, the Governments must establish or maintain
procedures for the participation of the peoples concerned in determining
whether the interests of these people would be adversely affected and to what
extent, before undertaking or authorizing any programme for planning,
prospecting or exploiting existing resources on their lands. The peoples concerned shall participate in
the benefits of such activities, and shall receive compensation, on a basis not
less favourable than the standard of international law for any loss which they
may sustain as a result of such activities.
6. Unless exceptional and justified
circumstances so warrant in the public interest, the States shall not transfer
or relocate indigenous peoples without the free, genuine, public and informed
consent of those peoples, but in all cases with prior compensation and prompt
replacement of lands taken, which must be of similar or better quality and
which must have the same legal status; and with guarantee of the right to
return if the causes that gave rise to the displacement cease to exist.
7. Indigenous peoples have the right to
the restitution of the lands, territories and resources which they have
traditionally owned or otherwise occupied or used, and which have been
confiscated, occupied, used or damaged, or when restitution is not possible,
the right to compensation on a basis not less favourable than the standard of
international law.
8. The States shall take all measures,
including the use of law enforcement mechanisms, to avert, prevent and punish,
if applicable, any intrusion or use of those lands by unauthorized persons to
take possession or make use of them. The
States shall give maximum priority to the demarcation and recognition of
properties and areas of indigenous use.
Bibliography
Acosta,
Maria Luisa. The State and indigenous
lands in the Autonomous Regions: the
case of the Mayagna Community of Awas Tingni.
Indigenous Affairs, No. 4, p. 35 (December 1998).
Alfredsson,
Gudmundur. The Right to
Self-determination and Indigenous Peoples, in Modern Law of Self-determination,
edited by Chr. Tomuschat, Martinus Nijhoff Publ., pp. 41‑54.
Anaya, S.
James. Indigenous Peoples in
International Law. New York, Oxford
University Press, 1996.
_____. Native land claims in the United States: the unatoned for spirit of place. In The Cambridge Lectures, 1991. Frank McArdle (ed.). Cowansville, Quebec, Les Editions Yvon Blais,
1993, pp. 25-36.
_____. The native Hawaiian people and international
human rights law: toward a remedy for
past and continuing wrongs. 28 Georgia
Law Review, 1994.
Anderson,
William L. Cherokee removal: before and after. Athens, University of Georgia Press, 1991.
Anti‑Slavery Society.
The land rights of Latin American Indians. Report to the International NGO
Conference on Indigenous Peoples and the Land, 15‑18 September 1981.
_____. The Philippines: authoritarian government, multinationals and
ancestral lands. 1983.
_____. The Chittagong Hill Tracts: militarization, oppression and the hill
tribes. 1984.
Armstrong,
Terence. Russian settlement in the
north. Cambridge University Press, 1965.
Arnhem,
Kaj. The Maasai and the State: the impact of rural development policies on a
pastoral people in Tanzania.
International Work Group on Indigenous Affairs document 52, 1985.
Aronson,
Dan R. Pastoralists: losing ground in Somalia. ARC Newsletter (Boston) 6:1, March 1982.
Aspelin,
Paul and Silvio Coelho dos Santos.
Indian areas threatened by hydroelectric projects in Brazil. International Work Group on Indigenous
Affairs document 44, 1981.
Baer,
Lars-Anders. The Sami - an indigenous
people in their own land. In The
Sami national minority in Sweden.
Stockholm, Rattsfonden (Legal Rights Foundation), 1982.
Bailey,
Robert. Development in the Ituri forest
of Zaire. Cultural Survival Quarterly
6:2 (Spring 1982), pp. 23-24.
Ball,
Milner. Constitution, courts, Indian
tribes. 1987 A.B.F. Res. J. 1, 63
(1987).
Barsh,
Russel Lawrence. Indigenous peoples in
the 1990s: from object to subject of
international law? Harvard Human
Rights Journal 7 (1994).
_____. Indian claims policy in the United
States. 58 North Dakota Law Review
58:7, 1982.
_____. How Do You Patent a Landscape? The Perils of Dichotomizing Cultural and
Intellectual Property, vol. 8 (1999), No. 1, Oxford University Press, pp.
14-47.
Bello,
Walden, David Kinley and Elaine Elinson.
Development debacle: The World
Bank in the
Philippines. San Francisco, Institute for Food and
Development Policy, 1982.
Berger, Thomas R. Village journey: The Report of the Alaska Native Review
Commission.
Hill and Wang, 1985.
____. Long
and terrible shadow: white values,
native rights in the Americas 1492-1992.
Douglas & McIntyre, Ltd., 1991.
Bergman,
Randy and Dorothy C. Lawrence. New
developments in Soviet property law. Columbia
Journal of Transnational Law 28:189-206, 1990.
Berman,
Howard. The concept of aboriginal rights
in the early legal history of the United States. Buffalo Law Review 27:637-67, 1979.
Berreman,
Gerald D. The movement to save the
Himalayas. The Global Reporter
1:4 (Spring 1984), pp. 16-18.
Bishop,
Kristyna. Squatters on their own
land: San territoriality in Western
Botswana (1998). 31 Comparative
and International Law Journal of Southern Africa 92.
Bodley,
John. The World Bank tribal policy: criticisms and recommendations. Testimony on behalf of the National Congress
of American Indians before the House Committee on Banking, Finance and Urban
Affairs, 29 June 1983.
Branford,
Sue and Oriel Glock. The last
frontier. London, Zed Press, 1985.
Brierly, J.L. The Law of Nations. Oxford University Press, 1960, p. 154.
Brodeur,
P. Restitution: the land claims of the Mashpee,
Passamaquoddy, and Penobscot Indians of New England. University Press of New England, 1985.
Brody,
Hugh. Ecology, politics and change: the case of the Eskimo. Development and Change 9:1, pp.
21-40.
Bruntdland,
Gro. Our common future. Oxford University Press, 1987.
Bunyard,
Peter. The Colombian Amazon: policies for the protection of its indigenous
peoples and their environment. Cornwall,
United Kingdom, Ecological Press, 1989.
Burger, Julian. Premières Nations, ANAKO Editions, Paris,
2000.
Butt,
Peter and others. “Mabo” revisited -
Native Title Act. Journal of
International Banking Law 9:75-84, 1994.
Campisi,
Jack. The Trade and Intercourse
Acts: land claims on the eastern
seaboard. In Irredeemable
America: the Indians’ estate and land
claims. Imre Sutton (ed.). Albuquerque, University of New Mexico Press,
1985, pp. 337-362.
Caplan,
Lionel. 1990. Tribes in the ethnography
of Nepal: some comments on a
debate. Contribution to Nepalese
Studies, vol. 17, No. 2 (July 1990).
Kathmandu: CNAS, Tribhuvan
University.
Caufield,
Catherine. In the rainforest. London, Heinemann, 1985.
Centre
for Science and Environment. The state
of India’s environment, 1982. New Delhi,
1982.
_____. The state of India’s environment, 1984-5. New Delhi, 1985.
Charney,
Jonathan I. Transnational corporations
and developing public international law.
Duke Law Journal. 1983, pp. 748-788.
Chartier,
Clem. Aboriginal rights and land
issues: the Metis perspective. Metis National Council, April 1983.
Churchill,
Ward. The earth is our mother: struggles for American Indian land and
liberation in the contemporary United States. In The state of native America: genocide, colonization, and resistance. Annette Jaimes (ed.). Boston, South End Press, 1992.
Clay,
Jason W. Indigenous peoples and tropical
forests: models of land use and
management from Latin America. Cultural
survival report 27. Cambridge, Mass.,
Cultural Survival, 1988.
Cohen,
Felix. Handbook of federal Indian
law. 1942.
_____. Original Indian title. 32 Minnesota Law Review. 1947, pp. 28-59.
Comissaõ
Pro Yanomami. Update No. 101. February 1999.
Conolly,
Violet. Siberia today and tomorrow: a study of economic resources, problems and
achievements. London, Collins, 1975.
Coppens,
Walter. The anatomy of a land invasion
scheme in Yekuana territory, Venezuela.
International Work Group on Indigenous Affairs document 9, 1972.
Corry,
Stephen. Cycles of dispossession: Amazonian Indians and government in
Peru. Survival International Review
43:45-70, 1984.
Daes,
Erica-Irene A. Native People’s Rights,
in Les droits des minorités, Les Cahiers des Droit, vol. 27, No 1, Faculté
de Droit, Université Laval, Quebec, Mars 1986, pp. 123-133.
_____. Some consideration on the rights of indigenous
peoples to self-determination. Transnational
Law and Contemporary Problems 3, 1993.
Davis,
Shelton H. Land rights and indigenous
peoples: the role of the Inter-American
Commission on Human Rights. Cambridge,
Mass., Cultural Survival, 1988.
Deloria,
Jr., V. and C. Lytle. American Indians,
American Justice. University of Texas
Press, 1983.
Dodson,
Michael. Human rights and the
extinguishment of native title.
Aboriginal and Torres Straits Islander Commission (Australia). July 1995.
Durie and
Orr. The role of the Waitangi Tribunal
and the development of a bicultural jurisprudence. New Zealand Universities Law Review
14:62, 1990.
Durning,
Alan Thein. Guardians of the land: indigenous peoples and the health of the
earth, Worldwatch Paper 112, December, 1992.
Dyson-Hudson,
Neville and Rada. The structure of East
African herds and the future of East African herders. Development and Change 13:2, April
1982, pp. 213-238.
Feit,
Harvey. Negotiating recognition of
Aboriginal land rights: history,
strategies and reactions to the James Bay and Northern Quebec Agreement. In Aborigines, land and land
rights. Nicholas Peterson and Marcia
Langton (eds.). Canberra, Australian
Institute of Aboriginal Studies. Distributed
in North and South America by Humanities Press.
1983, pp. 416-438.
Gasgonia,
Donna. Ancestral domains of indigenous
peoples: growth center for economic and
environmental cooperation. Paper
prepared for the Expert Seminar on Practical Experiences Regarding Indigenous
Land Rights and Claims. Whitehorse,
Canada, 24‑28 March 1996 (E/CN.4/Sub.2/AC.4/1996/6/Add.1).
Gedlicks,
Al. Lands for dreaming or mining? The Global Reporter 1:3, Fall 1983, p.
13.
Getches,
D., C. Wilkinson, R. Williams. Federal Indian law: cases and materials. West Casebook (1998).
Gjording,
Chris N. The Cerro Colorado copper
project and the Guaymi Indians of Panama.
Cultural Survival Occasional Paper 3, March 1981.
Goldsmith,
E. and N. Hildyard. The social and
environmental effect of large dams.
Wadebridge Ecological Centre, 1984.
Guilmartin,
John F., Jr. The cutting edge: an analysis of the Spanish invasion and
overthrow of the Inca empire. In
Transatlantic encounters: Europeans and
Andeans in the sixteenth century.
Kenneth J. Andrien and Rolena Adorno (eds.). Berkeley and Oxford, University of California
Press, 1991, pp. 40-69.
Hannum,
Hurst. Self-determination as a human
right. Virginia Journal of
International Law 28, 1988.
Harvard
Journal of Law and Public Policy. Property
- the founding, the welfare state, and beyond.
The Eighth Annual National Federalist Society Symposium on Law and
Public Policy, 1989. Harvard Journal
of Law and Public Policy 13:1-165, 1990.
Henderson,
James (Sakej) Youngblood and others.
Aboriginal Tenure in the Constitution of Canada. Carswell Thomas Professional Publishing,
1999.
Henningsgaard,
William. The Akawaio, the Upper Mazaruni
hydro-electric project and national development in Guyana. Cultural Survival Occasional Paper 4, June
1981.
Hickey,
Gerald C. and Jesse Wright. The hill
people of northern Thailand: social and
economic development. USAID, 1978.
Inter-American
Commission on Human Rights. Report on
the situation of human rights in Brazil, 1997.
International
Labour Organization. Indigenous and
tribal peoples and land rights. Geneva,
International Labour Office, 1984.
Jorgensen,
J. (ed.). Native Americans and energy
development II. Anthropology Resource
Center and Seventh Generation Fund, 1984.
Kawharu,
I.H. (ed.). Waitangi: Maori and Pakeha perspectives of the Treaty
of Waitangi. Auckland, New York and
Oxford, Oxford University Press, 1989.
Keon-Cohen,
Bryan and Bradford Morse. Indigenous
land rights in Australia and Canada. In Aborigines
and the law. Peter Hanks and Bryan
Keon-Cohen (eds.). Sydney and Boston,
Allen & Unwin, 1984, pp. 74-102.
Ladbury,
Rick and Jenny Chin. Legislative
responses to the Mabo decisions:
implications for the Australian resources industry. Journal of Energy and Natural Resources Law
12:207-25, 1994.
Lijerón
Casanovas, Arnaldo. Bolivia: the indigenous territories of Amazonia. Indigenous Affairs 4 (October-December
1994), 16-18.
Malaysia,
Sahabat Alam. “Native Customary Rights
in Sarawak”, Cultural Survival Quarterly, vol. 10, No. 2 (1987).
MartÃnez
Cobo, José R. Study of the problem of
discrimination against indigenous populations.
Volume V. Conclusions,
proposals and recommendations. United
Nations publication (Sales No. E.86.XIV.3). New York, United Nations, 1987.
McGill,
Stuart. Indigenous resource rights and
mining companies in North America and Australia. Canberra, Australian Government Publishing
Service, 1986.
McGinty,
Jennifer S. New Zealand’s forgotten
promises: the Treaty of Waitangi. Vanderbilt Journal of Transnational Law
25:681-722, 1992.
McHugh,
Paul G. The constitutional role of the
Waitangi Tribunal. New Zealand Law
Journal 224:3, 1985.
_____. The Maori Magna Carta: New Zealand law and the Treaty of
Waitangi. Auckland, New York and Oxford,
Oxford University Press, 1991.
McLuhan,
T.C. (ed.). Touch the earth: a self-portrait of Indian existence. New York, Outerbridge and Dienstfrey, 1971. Distributed in the United States by E.P.
Dutton.
McNeil,
Kent. Common law aboriginal title. Oxford:
Clarendon Press, 1989; The meaning of Aboriginal title. In Michael Asch, ed., Aboriginal and
Treaty Rights in Canada. Vancouver,
U.B.C. Press, 1997.
MacDonald,
Robert. The Maori of New Zealand. Minority Rights Group, 1985.
Merritt,
John and Terry Fenge. The Nunavut land
claims settlement: emerging issues in
law and public administration. Queens
Law Journal 15:255-77, 1990.
Myers,
Norman. The primary source: tropical forests and our future. New York, W.W. Norton, 1985.
Navia
Ribera, Carlos. Reconocimiento,
demarcación y control de territorios indÃgenas:
situación y experiencias en Bolivia.
In Reconocimiento y demarcación de territorios indÃgenas en la
AmazonÃa, Martha Cárdenas and Hernán DarÃo Correa (eds.). Bogotá, Serie Amerindia No. 4. CEREC, 1993.
Newton,
Nell. At the whim of the sovereign: Aboriginal title reconsidered. Hastings Law Journal 31:1215, 1980.
_____. Indian claims in the courts of the
conqueror. 41 American University Law
Review 41:753, 1992.
_____. Enforcing the Federal-Indian trust
relationship after Mitchell. 31 Catholic
University Law Review 31:635, 1982.
O’Donnell,
J. The dispossession of the American
Indian 1887-1934. University of Indiana
Press, 1991.
Orlando. Aboriginal title claims in the Indian Claims
Commission: United States v. Dann and
its due process implications. Environmental
Affairs 13:241, 1986.
Paine,
Robert. Dam a river, damn a people? International Work Group on Indigenous
Affairs document 45, 1982.
Peterson,
Nicholas and Marcia Langton (eds.).
Aborigines, land and land rights.
Canberra, Australian Institute of Aboriginal Studies, 1983. Distributed in North and South America
by Humanities Press.
Plant,
Roger. Addressing indigenous land rights
and claims: the role of international
technical assistance. Paper prepared for
the Expert Seminar on Practical Experiences regarding Indigenous Land Rights
and Claims, Whitehorse, Canada, 24-28 March 1996
(E/CN.4/Sub.2/AC.4/1996/6/Add.1).
Plant,
Roger and Lee Swepston. International
standards and the protection of the land rights of indigenous and tribal
populations. International Labour
Review 124:1 (January‑February 1985), pp. 91-106.
Price,
David. The World Bank and native
peoples: a consultant’s view. Testimony presented at the hearings on the
environmental policies of multilateral development banks held by the
United States House of Representatives Subcommittee on International
Development Institutions and Finance, 29 June 1983.
Regmi,
Mahesh C. The communal land system: Kipat tenure.
Land tenure and taxation in Nepal.
Kathmandu. Ratna Pustak Bhandar,
1978.
Report on
the Complaints of the Innu of Labrador to the Canadian Human Rights Commission,
18 August 1993.
Report of
the Chittagong Hill Tracts Commission, May 1991.
Rich,
Bruce. Time running out for Mexico’s
last tropical forest. Cultural
Survival Quarterly 6:2 (Spring 1982), pp. 13-14.
Roberts,
Jan. Massacres to mining: the colonisation of Aboriginal Australia
(Dove Communications, Victoria, 1981).
Roldán Ortega, Roque. Adjudicación de tierras en la Amazonia: La experiencia de los paÃses.
In Reconocimiento y demarcación de
territorios indÃgenas en la Amazonia, pp. 241-56. Serie Amerindia, 4. Edited by Martha Cárdenas and Hernán DarÃo
Correa. Bogotá, CEREC, 1993.
_____. Notes on the legal status and recognition of
indigenous land rights in the Amazonian countries. Paper prepared for the Expert Seminar on
Practical Experiences Regarding Indigenous Land Rights and Claims, Whitehorse,
Canada, 24-28 March 1996 (E/CN.4/Sub.2/AC.4/1996/6/Add.1).
Roy,
Rajkumari Chandra Kalindi. Land rights
of indigenous peoples of the Chittagong Hill Tracts of Bangladesh.
Sagant,
Philippe, 1996. How the Limbus became
Hindus. The Dozing Shaman. Bombay, Oxford University Press.
Sanders,
Douglas. The rights of the aboriginal
peoples of Canada (1983) 61 Canadian Bar Review 314.
Sanders,
Douglas. Indigenous and tribal
peoples: the right to live on their own
land, 12th Commonwealth Law Conference, Kuala Lumpur, Malaysia, 13‑16 September 1999.
Sanders,
Douglas and others. Common law rulings
on the customary land rights of Aboriginal or indigenous people. Unpublished paper on file with the Special
Rapporteur, 6 August 1999.
Sanders,
Ronald. Lost tribes and promised
lands. Boston, Little, Brown, 1978.
Schwartzman,
Stephen. Indigenists, environmentalists
and the multilateral development banks. Cultural
Survival Quarterly, vol. 8, No. 4, December 1984, pp. 74-75.
Shattuck,
G. The Oneida land claims: a legal history. Syracuse University Press, 1991.
Shaw,
Malcolm. Title to territory in
Africa: international legal issues. Oxford, Clarendon Press; New York, Oxford
University Press, 1986.
Shrestha,
Shiva Kumar. 1985 Limbuwanko Kipat
Pratha (Kipat System of Limbuwan). Limbuwanko
Aitihashik Adhyayan (Nepali).
Lalitpur: Kirat Prakashan Tatha
Abhilekh Kendra.
Smith. Concept of native title. Toronto Law Journal 24:1, 1974.
Smith,
Richard Chase. The dialectics of
domination in Peru: native communities
and the myth of the vast Amazonian emptiness.
Cultural Survival Occasional Paper 8, October 1982.
Soares,
Guido F.S. The treaty-making process
under the 1988 Federal Constitution of Brazil.
Chicago-Kent Law Review 67:495-513, 1991.
Stavenhagen,
Rudolfo. The status and rights of the
indigenous peoples of America. Prepared
for the Inter-American Commission on Human Rights, July 1991.
Stephenson,
M.A. and Suri Ratnapala (eds.).
Mabo: a judicial revolution: the Aboriginal land rights decision and its
impact on Australian law. St. Lucia,
University of Queensland Press, 1993.
Stewart,
Omer. The Shoshone claims cases. In Irredeemable America. Imre Sutton (ed.). Albuquerque, University of New Mexico Press,
1985, pp. 187-206.
Sutton,
I. Irredeemable America: the Indians’ estate and land claims. University of New Mexico Press, 1985.
Swift,
Jeremany. The future of the African
hunter-gatherer and pastoral peoples. Development
and Change 13:2 (April 1982), pp. 159-81.
Tullberg,
S. and others. Violations of the human
rights of the Sioux Nation, the Six Nations Iroquois Confederacy, the Western
Shoshone Nation and the Hopi Nation by the United States of America. 11 March 1980.
Vattel.
The Law of Nations. Book 1, chap.
XVIII, 1805.
Vecsey,
C. (ed.). Iroquois land claims. Syracuse University Press, 1989.
Williams,
Betty. Case study of Maori action
against Conzinc Rio Tinto. Paper
presented to the Global Meeting on Environment and Development, Nairobi, 4-8
February 1985.
Williams,
Betty Whaitiri. The passage of Maori
land into Pakeha ownership: a Maori
view. Christchurch, New Zealand. Cabbage Tree Publications.
Williams,
Robert A. The American Indian in western
legal thought: the discourses of
conquest. Oxford University Press, 1990.
_____. The Medieval and Renaissance origins of the
status of the American Indian in western legal thought. Southern California Law Review
57:1. 1983, pp. 68-85.
Willheim,
Ernst. Queensland pastoral leases and
native title. Aboriginal Law Bulletin
3:89, 1997, p. 20.
Working
Group on Indigenous Populations (E/CN.4/Sub.2/1989/36, E/CN.4/Sub.2/1990/42,
E/CN.4/Sub.2/1991/40/Rev.1, E/CN.4/Sub.2/1992/33, E/CN.4/Sub.2/1993/29,
E/CN.4/Sub.2/1994/30 and Corr.1, E/CN.4/Sub.2/1995/24 and E/CN.4/Sub.2/1996/21
and Corr.1).
World
Bank. Tribal peoples and economic
development: human ecological
considerations. Washington, May 1982.
World
Council of Churches. Land rights for
indigenous people. Statement adopted by
the Central Committee of the World Council of Churches, July 1982.
_____. Land rights for indigenous peoples. Geneva, March 1983. United Nations. Report of the Expert Seminar on Practical
Experiences regarding Indigenous Land Rights and Claims, Whitehorse, Canada,
26-28 March 1996 (E/CN.4/Sub.2/AC.4/1996/6).
United
Nations Centre for Human Rights. The
effects of racism and racial discrimination on the social and economic
relations between indigenous peoples and States. Report of a seminar. Geneva, 16-20 January 1989 (HRI/PUB/89/5).
Cases
AUSTRALIA
Wik v. State of Queensland
Eddie Mabo and others v. State of
Queensland
CANADA
Delgamuukw v. The Queen, Supreme Court of Canada, 11 December 1997
Sparrow v. R. (1990) 4 C.N.L.R. 98
St. Catherines Milling Co. v. Queen (1888) 14 App. Cas. 46; 2 C.N.L.C. 541
INTERNATIONAL ARBITRATION TRIBUNALS
Cayuga Indians (Great Britain) v. United
States VI R. Int’l Arb.
Awards 173 (1926)
Island of Palmas (U.S. v. Neth.) II
R. Int’l Arb. Awards 831 (1928)
INTERNATIONAL COURT OF JUSTICE
Western Sahara, Advisory Opinion 1975
I.C.J. 12
PERMANENT COURT OF INTERNATIONAL JUSTICE
Eastern Greenland (Den. v. Nor.)
1993 P.C.I.J. (ser. A/B) No. 53
UNITED STATES
Cherokee Nation v. Georgia 30 U.S. (5 Pet.) 1 (1831)
Johnson v. M’Intosh 21 U.S. (Wheat.) 543 (1823)
Karuk Tribe of California, et al. v. United
States United States Court
of Federal Claims (6 August 1998)
Lone Wolf v. Hitchcock 187 U.S. 553 (1903)
Seneca Nation of Indians v. Brucker 262 F.2d 27 (D.C. Cir 1958), cert. denied,
360 U.S. 909 (1959)
Tee-Hit-Ton Indians v. United States 348 U.S. 272 (1995)
Worcester v. Georgia 31 U.S. (6 Pet.) 515 (1832)
[1] The relevant paragraphs are
as follows:
“The Sub‑Commission
on Prevention of Discrimination and Protection of Minorities,
Acknowledging
that indigenous peoples in many countries have been deprived of their human
rights and fundamental freedoms and that many of the human rights problems
faced by indigenous peoples are linked to the historical and continuing
deprivation of ancestral rights over lands, territories and resources,
Recognizing the
profound spiritual, cultural, social and economic relationship that indigenous
people have to their total environment and the urgent need to respect and
recognize the rights of indigenous people to their lands, territories and
resources,
Acknowledging
that lack of secure land rights, in addition to continued instability of State
land tenure systems and impediments to efforts for the promotion and protection
of indigenous communities and the environment, are imperilling the survival of
indigenous peoples,
Recognizing that
United Nations organs and Member States have increasingly acknowledged that
lands and natural resources are essential to the economic and cultural survival
of indigenous peoples, and that some States have enacted legal measures that
uphold indigenous land rights or have established procedures for arriving at
legally binding agreements on indigenous land‑related issues,
Mindful of the
development of relevant international standards and programmes which promote
and affirm the rights of indigenous peoples to their lands and resources, in
particular, the Indigenous and Tribal Peoples Convention, 1989 (No. 169) of the
International Labour Organization, Agenda 21 adopted by the United Nations
Conference on Environment and Development …, World Bank Operational Directive
4.20, the draft Inter‑American declaration on the rights of indigenous peoples
developed by the Inter‑American Commission on Human Rights of the Organization
of American States, and the draft United Nations declaration on the rights of
indigenous peoples,
Recognizing that
despite these international and national advances, problems continue to abound
which impede the effective enjoyment of indigenous land rights,
Recalling that many States in which
indigenous peoples live have yet to enact laws or policies regarding indigenous
land claims or in other instances have not provided adequate implementing
mechanisms concerning indigenous land rights that are mutually acceptable to
the parties concerned.”
[2] Communication from Manju
Yakthumba, Chairman, Kirat Yakthung Chumlung, Katmandu, to Mr. John Pace, 5
January 1998.
[3] Lionel Caplan, “Tribes in the
ethnography of Nepal: some comments on a
debate”, in Nepalese Studies, vol. 17, No. 2 (Katmandu, CNAS,
Tribhuvan University, July 1990), cited in the communication referred to in
note 2 above.
[4] Robert A. Williams,
“Encounters on the frontiers of international human rights law: redefining the terms of indigenous peoples’
survival in the world”, Duke Law Journal, 1990, p. 981.
[5] James Sakej Henderson,
“Mikmaq tenure in Atlantic Canada”, Dalhousie Law Journal, vol. 18, No.
2, 1995, p. 196.
[6] Statement by Eben Hopson,
founder of the Inuit Circumpolar Conference (ICC), at the organizing conference
held in Barrow, Alaska, in June 1977, and also contained in a statement by the
ICC representative to the Working Group in 1985.
[7] United Nations publication,
sales No. E.86.XIV.3.
[8] Ibid., paras. 196 and
197.
[9] Proposed Inter‑American
Declaration on the Rights of Indigenous Peoples, approved by the Inter‑American
Commission on Human Rights on 26 February 1997.
[10] Rodolfo Stavenhagen, “The
status and rights of the indigenous peoples of America”, report prepared for
the Inter‑American Commission on Human Rights, July 1991.
[11] The views of early
international legal theorists are discussed in Robert Williams, The American
Indian in Western Legal Thought: The
Discourses of Conquest, Oxford University Press, 1990, and “The Medieval
and Renaissance origins of the status of the American Indian in Western legal
thought”, Southern California Law Review, vol. 57, No. 1, 1983, pp. 68‑85. See also S. James Anaya, Indigenous
Peoples in International Law, Oxford University Press, 1996.
[12] Quaker Aboriginal Affairs
Committee, (Canada) Response to Preliminary Working Paper on Indigenous People
and their Relationship to Land (May 1999).
[13] Vine Deloria, Jr., American
Indians, American Justice, University of Texas Press, 1983, p. 36. An in‑depth exploration of how
indigenous languages and conceptions of
land affected treaty negotiations in Canada, can be found in James (Sakej)
Youngblood Henderson, Marjorie L. Benson & Isobel M. Findlay, Aboriginal
Tenure in the Constitution of Canada, Carswell Thomas Professional
Publishing, 1999.
[14] See for example, S. James
Anaya, Indigenous Peoples in International Law, Oxford University Press,
1996, p. 22.
[15] See for example,
J.L. Brierly, The Law of Nations, Oxford University Press, 1960, p. 154.
[16] See for example Delgamuukw
v. The Queen, para. 38.
[17] Eastern Greenland (Denmark
v. Norway), 1933 P.C.I.J. (ser. A/B) No. 53.
[18] Western Sahara, Advisory
Opinion, 1975 I.C.J. 12. Douglas
Sanders, a professor of law at the University of British Columbia, has
described modern condemnation of the doctrine of terra nullius. “The ‘terra nullius’ analysis, with its apparent
denial of the existence of the Aboriginal people, became a potent symbol of the
oppressive character of the legal system.
The Pope, on a visit to Australia, expressly condemned the doctrine of
‘terra nullius’. The United Nations
Working Group on Indigenous Populations drafted a Declaration of the Rights of
Indigenous Peoples, which specifically condemned ‘terra nullius’ in a
preambular paragraph.” Indigenous and
Tribal Peoples: The Right to Live on
their Own Land, 12th Commonwealth Law Conference, Kuala Lumpur, Malaysia,
13-16 September 1999. See also Douglas
Sanders, and others, “Common Law Rulings on the Customary Land Rights of
Aboriginal or Indigenous People”, unpublished paper on file with the Special Rapporteur,
6 August 1999.
[19] Reports of the Working Group
on Indigenous Populations E/CN.4/Sub.2/1993/29, E/CN.4/Sub.2/1994/30 and
Corr.1, E/CN.4/Sub.2/1995/24 and E/CN.4/Sub.2/1996/21 and Corr.1. See also, Willheim, “Queensland pastoral
leases and native title”, Aboriginal Law Bulletin, vol. 3, No. 89, 1997,
p. 20; M. Dodson, “Human rights and extinguishment of native title”, 1995.
[20] See also the Conclusions and
Recommendations contained in the Report of the Seminar on the Effects of Racism
and Racial Discrimination on the Social and Economic Relations between
Indigenous Peoples and States, Geneva, 16‑20 January 1989 (HR/PUB/89/5).
[21] Rodolfo Stavenhagen, op.
cit., p. 22. The situation of indigenous
peoples of the Philippines is addressed in a paper prepared by Donna Gasgonia
for the Expert Seminar on Practical Experiences Regarding Indigenous Land
Rights and Claims, Whitehorse, Canada, 24‑28 March 1996
(E/CN.4/Sub.2/AC.4/1996/6/Add.1).
[22] Quaker Aboriginal Affairs
Committee (Canada), response to preliminary working paper on indigenous people and
their relationship to land (May 1999).
[23] Kristyna Bishop, “Squatters
on their own land: San territoriality in
western Botswana” (1998) 31 Comparative and International Law Journal
of Southern Africa 92.
[24] Communication from Heidi
Salmi, Assistant Director, Sámediggi Ministry of Foreign Affairs, 30
March 2000; Communication from Mikkel Oskal, Chairman, Mauken Reindeer Herding
District, 3 April 2000.
[25] Communication from Rev. Leva
Kila Pat, General Secretary, Papua New Guinea Council of Churches, 22 April
1998.
[26] Alan Thein Durning,
“Guardians of the land: indigenous
peoples and the health of the Earth”, Worldwatch Paper 112 (December, 1992),
pp. 21-22. The Indigenous Peoples Right
Act of 1997 now provides a means for recognition of indigenous land
rights. The usefulness of the Act
deserves careful evaluation.
[27] Ibid.
[28] See Newton, “At the whim of
the Sovereign: Aboriginal title
reconsidered”, Hastings Law Journal, vol. 31, No. 1215, 1980; Cohen,
“Original Indian title”, Minn L. Rev., vol. 32, 1947; Smith, “Concept of
native title”, Toronto Law Journal, vol. 24, No. 1, 1974; McHugh, “The
constitutional role of the Waitangi Tribunal”, New Zealand Law Journal,
vol. 224, No. 3, 1985.
[29] Aboriginal title has
received considerable scholarly attention in Canada. See, for example, Kent
McNeil, Common Law Aboriginal Title, Oxford, Clarendon Press, 1989; “The
meaning of
Aboriginal
title” in Michael Asch, ed., Aboriginal and Treaty Rights in Canada,
Vancouver, UBC Press, 1997; Douglas
Sanders, “The Rights of the Aboriginal Peoples of Canada” (1983) 61 Can. Bar
Rev. 314.
[30] See report of the Expert
Seminar on Practical Experiences Regarding Indigenous Land Rights and Claims,
loc. cit.
[31] Felix Cohen, the foremost
scholar of United States law in regard to Indian affairs, commented on the
discriminatory nature of property ownership by Indian tribes: “That there are peculiar incidents attached
even to fee-simple tenure by an Indian tribe is an undoubted fact, and the explanation
of this fact is probably to be found in the contagion that has emanated from
the concept of aboriginal possession”. Handbook
of Federal Indian Law, 1942, p. 291.
[32] See P. Joffe and M.E.
Turpel, Extinguishment of the Rights of Aboriginal Peoples: Problems and Alternatives. A comprehensive study by the Royal Commission
on Aboriginal Peoples (Canada), 3 volumes, June 1995; and Treaty Making
in the Spirit of Coexistence: An
Alternative to Extinguishment. A report
by the Royal Commission on Aboriginal Peoples, Ottawa, 1995.
[33] See Vattel, The Law of
Nations, Book 1, 1805, chap. XVIII.
An account of the extinguishment policies of Spain, France and England
during the colonial period is set forth in Royce, “American Indian land
cessions”, Introduction by Cyrus Thomas, Bureau of American Ethnology,
Eighteenth Annual Report, 1899.
[34] 348 U.S. 272 (1995).
[35] And the United States
Government continues to exploit the doctrine to defeat Indian claims. For example, the Tee-Hit-Ton
decision was the basis for the decision of the United States Court of Federal
Claims in Karuk Tribe of California, et al. v. United States (6 August
1998).
[36] The Alaska Native Claims
Settlement Act and its consequences are discussed in full detail in Thomas R.
Berger, Village Journey: The Report
of the Alaska Native Review Commission, 1985. Commissioner Berger presented the report to
the thirteenth session of the Working Group on Indigenous Populations in 1995,
on behalf of the Inuit Circumpolar Conference, the non‑governmental
organization which sponsored the Commission project.
[37] St. Catherines Milling
Co. v. Queen, (1888) 14 App. Cas. 46; 2 C.N.L.C. 541; 58 L.J.P.C. 54; 60
L.T. 197; 5 T.L.R. 125, affirming 13 S.C.R. 577.
[38] Michael Dodson, op. cit.
[39] “Aboriginal and Torres
Strait Islander Peoples and Australia’s obligations under the
United Nations Convention on the Elimination of All Forms of Racial
Discrimination”, a report submitted by the Aboriginal and Torres Strait
Islander Commission to the United Nations Committee on the Elimination of
Racial Discrimination (February, 1999), 4.1.1.
[40] Committee on the Elimination
of Racial Discrimination, Decision (2) 54 on Australia, 18 March 1999
(A/54/18, para. 21) “Validation” refers to validation of certain non‑indigenous
titles; the consequence of validation is the arbitrary extinguishment or
impairment of affected native title and the loss of an opportunity to
negotiate. “Confirmation of
extinguishment” provisions refer to past acts of extinguishment. A range of previously issued titles are
deemed by the Act to extinguish native title permanently, whether or not such
titles extinguish title at common law.
“Primary production upgrade” provisions permit pastoral lease holders to
apply to upgrade their rights to permit a broad range of higher intensity
“primary production activities” without requirements of consultation or
negotiation with affected native title holders.
The restrictions on the right of native title holders to negotiate mean
that states and territories are entitled to establish regimes for the grant of
interests to mining companies and other developers on terms significantly less
favourable to native title holders than before the amendments.
[41] Roque Roldán Ortega, “Notes
on the legal status and recognition of indigenous land rights in the Amazonian
countries”, Report of the Expert Seminar on Practical Experiences Regarding
Indigenous Land Rights and Claims, op. cit. See also Stavenhagen, op. cit.
[42] Maria Luisa Acosta, “The
State and indigenous lands in the Autonomous Regions: The case of the Mayagna community of Awas
Tingni”, Indigenous Affairs, No. 4, December 1998, p. 35.
[43] Corte Interamericana De
Derechos Humos, Caso De La Comunidad Mayagna (Sumo) Awas Tingni, Sentencia
De 1 De Febrero De 2000, para. 60.
[44] Comissão Pro Yanomami Update,
No. 101, February 1999.
[45] Inter-American Commission on
Human Rights, Report on the Situation of Human Rights in Brazil, 1997.
[46] Comissão Pro Yanomami Update
No. 101, February 1999; Conselho Indigenista Missionário - CIMI,
Newsletter Nos. 354, 356.
[47] Communication from Manju
Yakthumba, Chairman, Kirat Yakthung Chumlung, Katmandu, Nepal to Mr. John Pace,
5 January 1998.
[48] See report of the Working
Group on Indigenous Populations on its seventh session (E/CN.4/Sub.2/1989/36).
[49] Newton, “Indian claims in
the courts of the conqueror”, 41 American University Law Review, vol.
41, No. 753, 1992; Barsh, “Indian claims policy in the United States”, North
Dakota Law Review, vol. 58, No. 7, 1982; Orlando, “Aboriginal title claims
in the Indian Claims Commission: United
States v. Dann and its due process implications”, Environmental Affairs,
vol. 13, No. 241, 1986.
[50] See for example, S.
Tullberg, R. Coulter and C. Berkey, Indian Law Resource Center, “Violations of
the human rights of the Sioux Nation, the Six Nations Iroquois Confederacy, the
Western Shoshone Nation and the Hopi Nation by the United States of America”, a
complaint communicated to the Commission on Human Rights under the confidential
“1503” procedure on 12 March 1980; Petition of Mary and Carrie Dann and the
Dann Band of the Western Shoshone Nation to the Inter-American Commission on
Human Rights, 3 April 1993.
[51] Petition of Mary and Carrie
Dann on behalf of themselves and the Dann Band of the Western Shoshone
Nation against the United States to the Inter-American Commission on Human
Rights (1993).
[52] Response of the United
States (9 September 1993).
[53] Letter from Jorge E. Taiana,
Executive Secretary of the Inter-American Commission on Human Rights, to S.
James Anaya and Steven M. Tullberg, Indian Law Resource Center
(28 June 1999).
[54] Inter-American Commission on
Human Rights Report No. 99/99 (27 September 1999).
[55] The Government of New
Zealand submitted comments on the preliminary working paper stating, among
other things, that such anger is expressed by very small groups, and pointing
out that there is rarely complete support for a settlement from all
involved. Letter from
Deborah Geels, First Secretary, Permanent Mission of New Zealand to the
United Nations Office at Geneva, addressed to the High Commissioner for Human
Rights, 25 June 1998. The Government of
New Zealand submitted additional comments on the second progress report in
which it describes its processes for defining the claimant group, verifying the
authority of negotiators and approving the final settlement. Facsimile from Emma Eastwood, Policy
Analyst, Office of Treaty Settlement to Janet Lowe, Ministry of Foreign
Affairs and Trade, 14 March 2000.
[56] Alan Thein Durning,
“Guardians of the land: indigenous
peoples and the health of the Earth”, Worldwatch Paper 112 (December 1992) p.
26, citing Sahabat Alam Malaysia, “Native customary rights in Sarawak”, Cultural
Survival Quarterly, vol. 10, No. 2 (1987). In 1998, the Malaysian Court of Appeal in Adong
bin Kuwau v. State of Johor upheld a trial judgement which awarded
compensation to the Jakun tribe for the loss of 53,273 acres of ancestral
lands in the southern state of Johor.
[57] Durning, op. cit.,
p. 26.
[58] General Assembly resolution
1803 (XVII) of 14 December 1962, entitled “Permanent sovereignty over
natural resources”.
[59] General Assembly resolution
626 (VII) of 21 December 1952, entitled “Right to exploit freely natural wealth
and resources”.
[60] See, for example, the report
of the Working Group on Indigenous Populations on its seventh session
(E/CN.4/Sub.2/1989/36). In regard to
hydroelectric development and the indigenous peoples of the Chittagong Hill
Tracts, see the report of the Chittagong Hill Tracts Commission, May 1991. See also Rajkumari Chandra Kalindi Roy, Land
Rights of the Indigenous Peoples of the Chittagong Hill Tracts, Bangladesh
(Norwegian Agency for Development Corporation (NORAD), 1996).
[61] Reports of the Working Group
on Indigenous Populations (E/CN.4/Sub.2/1989/36; E/CN.4/Sub.2/1993/29).
[62] For example, one indigenous
organization in Peru submitted a communication on the adverse effects of
commercialization of the Amazon region on the indigenous communities and the
environment, particularly the problems of mining, oil development, road
building and deforestation. Communication
on the situation of indigenous peoples and their lands and territories in
Amazonian Peru, Mr. Miquea Mishari Mofat, Central de Comunidades
Nativas de la Selva Central, Peru, 15 April 1998. In a communication of 5 April 1998,
Chief Teobaldo Melgar of the Yuracare people, and Bernardo Toranzo C.,
“Proyecto Munay”, Bolivia, point out that this indigenous people has been
relocated from its lands and that the discovery of oil on those lands has made
it more difficult to seek their recovery.
Nevertheless, the Yuracare people hope that they will be able to return
to their territories in order to maintain their traditions. In Japan, the Nibutani Dam project was the
impetus for the administrative confiscation of land belonging to the Ainu
people. Although authorization for the
project was later held to be illegal because it did not account for the effects
on the Ainu, the dam was not deconstructed.
The court held that removing the dam would be against public interest
and, in any case, would not restore Ainu cultural sites that had already been
destroyed. Kayano et al.
v. Hokkaido Expropriation Committee, translated by Mark A. Levin,
38 International Legal Materials 394 (1999).
[63] The Government of Canada
reports in its submission of 27 May 1998 to the Special Rapporteur that
settlements have been reached with groups such as the Mushuau Innu of Davis
Inlet.
[64] Thomas R. Berger, Long and
Terrible Shadow: White Values, Native
Rights in the Americas 1492-1992, Douglas & McIntyre, Ltd., 1991,
p. 99.
[65] The Government of Canada
reports in its submission of 27 May 1998 to the Special Rapporteur that the
Government now does not believe that lands “transferred to Aboriginal people
through land claims settlements should continue to be held and managed by the Government
of Canada for First Nations, but that First Nations should own and control
these lands themselves”.
[66] See, for example, Ball,
“Constitution, courts, Indian tribes”, 1987 A.B.F. Res. J. 1, 63 (1987);
Newton, “Enforcing the Federal‑Indian trust relationship after Mitchell”, Catholic
University Law Review, vol. 31, No. 635, 1982.
[67] This case is discussed in
Willheim, op. cit.
[68] See Durie and Orr, “The role
of the Waitangi Tribunal and the development of a bicultural jurisprudence”, New
Zealand Universities Law Review, vol. 14, No. 62, 1990.
[69] R. Plant, “Addressing
indigenous land rights and claims: the
role of international technical assistance”, paper prepared for the Expert
Seminar on Practical Experiences regarding Indigenous Land Rights and Claims
(E/CN.4/Sub.2/AC.4/1996/6/Add.1).
[70] Facsimile from Emma
Eastwood, Policy Analyst, Office of Treaty Settlement to Janet Lowe, Ministry
of Foreign Affairs and Trade, 14 March 2000.
[71] Greg Joyce, “Nisga’a treaty
violates constitution, lawyer says:
Liberals begin challenge”, The Canadian Press, 16 May 2000.
[72] For one indigenous group’s
viewpoint on the problems with the Nisga’a Agreement, see The Union of B.C.
Indian Chiefs, “Modern land claim agreements:
through the Nisga’a looking glass”, draft, 7 September 1998.
[73] Concluding observations of
the Human Rights Committee: Canada,
para. 8, CCPR/C/79/Add.105 (7 April 1999); concluding
observations on Canada, para 18, E/C.12/1/Add.3.1 (4 December 1999);
Interior Alliance and Union of B.C. Indian Chiefs, Joint submission to the
Special Rapporteur regarding the second progress report on the working paper on
indigenous people and their relationship to land (23 February 2000).
[74] Amended petition to the Inter-American
Commission on Human Rights and reply to submission of Canada by the Carrier
Sekani Tribal Council, 1 May 2000, paras. 5-6, 40, 120‑144.
[75] Interior Alliance and Union
of B.C. Indian Chiefs, Joint submission to the Special Rapporteur regarding the
second progress report on the working paper on indigenous people and their
relationship to land (23 February 2000).
[76] The New York Times
reported on 20 March 1997 that the Government of Argentina had restored
ownership of 308,900 acres of ancestral lands to the Collas Indians.
[77] For more information on
recent legislation in Chile, see Report of the Expert
Seminar on Practical Experiences Regarding Indigenous Land Rights and
Claims (E/CN.4/Sub.2/AC.4/1996/6).
[78] Gro Bruntdland, Our
Common Future, Oxford University Press, 1987.