Indigenous land rights
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Indigenous land rights are the rights of indigenous peoples to land, either individually or collectively. Land and resource-related rights are of fundamental importance to indigenous peoples for a range of reasons, including: the religious significance of the land, self-determination, identity, and economic factors.[1] Land is a major economic asset. The majority of indigenous peoples living in forest areas depend on the natural resources of their lands to fulfill their subsistence needs. Hunting, fishing, gathering of forest products, and small garden plots still form the basis of their household economy. The security and permanence of their control and use of the natural resource base is actually more important to most indigenous groups than direct ownership of the land itself. The demand for ownership, in fact, derives from the need to ensure their access to these resources, so it is of particular importance to examine how the different national-level legal regimes handle this aspect of indigenous ownership. Land is also an important instrument of inheritance and it is a symbol of social status. The land is essential for people’s spiritual development. The land is sacred and everything they get from the land is a gift from their gods. Losing their land means a loss of contact with the earth and a loss of identity. Land is not only an asset with economic and financial value, but also a very important part of people's lives, worldviews and belief systems.
Indigenous land claims have been addressed, with varying degrees of success on the national and international level, since colonization. Such claims may be based upon the principles of international law, treaties, common law, or domestic constitutions or legislation.
International law
Indigenous land rights have historically been undermined by a variety of doctrines such as terra nullius.
The foundational documents for indigenous land rights in international law include Indigenous and Tribal Peoples Convention, 1989 ("ILO 169"), the Declaration on the Rights of Indigenous Peoples, the Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights.
Common law
Aboriginal title is the common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty. Indigenous peoples may also have certain rights on Crown land in many jurisdictions.
Australia
Canada
The leading case for aboriginal title in Canada is Delgamuukw v. British Columbia (1997).
New Zealand
Indigenous land rights were recognised in the Treaty of Waitangi made between the British Crown and various Māori chiefs. The Treaty itself has often been ignored, but New Zealand courts have usually accepted the existence of native title. Controversies over indigenous land rights have tended to revolve around the means by which Māori lost ownership, rather than whether they had ownership in the first place.
United States
"Next to shooting indigenous peoples, the surest way to kill us is to separate us from our part of the Earth."
Hayden Burgess, Hawaii[2]
The foundational decision for aboriginal title in the United States is Johnson v. McIntosh (1823), authored by Chief Justice John Marshall.
Native Americans in the United States have largely been relegated to Indian reservations managed by tribes under the United States Department of the Interior's Bureau of Indian Affairs.
Latin America
As the political systems of some Latin American countries are now becoming more democratic and open to listening and embracing the views of minorities these issues of land rights have clearly come up to the surface of the political life. Despite this new “re-recognition” bit by bit, the indigenous groups are still among the poorest populations of the countries and they often have less access to resources and they have lesser opportunities for progress and development. The legal situation of indigenous land rights in the countries of Latin America is highly varied. There is still a very broad variation of indigenous rights, laws and recognition throughout the whole continent. In the year 1957, the International Labour Organization(ILO), made the ILO Convention 107. This convention created laws and norms for the protection and integration of indigenous peoples in independent countries. All the independent countries of Latin America and the Caribbean of that time ratified this convention. Since the 1960s they started with the recognition of the first indigenous land claims since the colonial era. In the year 1989 the ILO made the Convention 169; the convention concerning Indigenous and Tribal Peoples in Independent Countries, which updates the ILO 107 of 1957. In this convention was also the recognition of the very close and important relationship between land and identity, or cultural identity very important. Today this convention has been ratified by 15 Latin American and Caribbean countries.
Civil law
Brazil
Mexico
The years after the Mexican Revolution of 1910 saw agrarian reforms (1917–1934), and in article 27 of the Mexican Constitution the encomienda system was abolished, and the right to communal land for traditional communities was affirmed. Thus the ejido-system was created, which in practice should comprise the power of private investments by foreign corporations and absentee landlords, and entitled the indigenous population to a piece of land to work and live on.
Since the 1980s and 1990s the focus of Mexico's economic policy concentrated more on industrial development and attracting foreign capital. The Salinas government initiated a process of privatization of land (through the PROCEDE-program). In 1992, as a (pre)condition for Mexico for entering the North American Free Trade Agreement (NAFTA) with the US and Canada, art.4 and art.27 of the Constitution were modified, by means of which it became possible to privatize communal ejido-land. This undermined the basic security of indigenous communities to land entitlement, and former ejidatorios now became formally illegal land-squatters, and their communities informal settlements. (see also the Chiapas conflict)
Customary law
References
Bibliography
- Richardson, Benjamin J., Shin Imai & Kent McNeil. 2009. Indigenous peoples and the law: comparative and critical perspectives.
- Robertson, L.G., (2005), Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands, Oxford University Press, New York ISBN 0-19-514869-X
- Snow, Alpheus Henry. 1919. The Question of Aborigines in the Law and Practice of Nations.