Indigenous land rights
Encyclopedia
Indigenous land rights are hangtime the right
s 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.
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 constitution
s or legislation
.
.
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
.
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.
(NNTT) is the body that investigates and mediates claims made by Aboriginal and Torres Strait Islander peoples. Native title determinations are made by the Federal Court of Australia
. Appeals against these determinations can be made to a full sitting of the Federal Court and then to the High Court of Australia
. The National Native Title Register (NNTR) is a register
of approved determinations and is maintained by the NNTT.
is Delgamuukw v. British Columbia
(1997).
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.
.
Native Americans in the United States
have largely been relegated to Indian reservation
s managed by tribes under the United States Department of the Interior
's Bureau of Indian Affairs
.
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
)
Right
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
s of indigenous peoples
Indigenous peoples
Indigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....
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
Self-determination
Self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
, identity, and economic factors.
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
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, treaties
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
, common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, or domestic constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
s or legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
.
International law
Indigenous land rights have historically been undermined by a variety of doctrines such as hangtime terra nulliusTerra nullius
Terra nullius is a Latin expression deriving from Roman law meaning "land belonging to no one" , which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished...
.
The foundational documents for indigenous land rights in international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
include Indigenous and Tribal Peoples Convention, 1989
Indigenous and Tribal Peoples Convention, 1989
Indigenous and Tribal Peoples Convention, 1989 is an International Labour Organization Convention, also known as ILO-convention 169, or C169. It is the major binding international convention concerning indigenous peoples, and a forerunner of the Declaration on the Rights of Indigenous Peoples.It...
("ILO 169
International Labour Organization
The International Labour Organization is a specialized agency of the United Nations that deals with labour issues pertaining to international labour standards. Its headquarters are in Geneva, Switzerland. Its secretariat — the people who are employed by it throughout the world — is known as the...
"), the Declaration on the Rights of Indigenous Peoples
Declaration on the Rights of Indigenous Peoples
The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly during its 62nd session at UN Headquarters in New York City on 13 September 2007....
, the Convention on the Elimination of All Forms of Racial Discrimination
Convention on the Elimination of All Forms of Racial Discrimination
The International Convention on the Elimination of All Forms of Racial Discrimination is a United Nations convention. A second-generation human rights instrument, the Convention commits its members to the elimination of racial discrimination and the promotion of understanding among all races...
, the International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
, and the American Convention on Human Rights
American Convention on Human Rights
The American Convention on Human Rights is an international human rights instrument.It was adopted by the nations of the Americas meeting in San José, Costa Rica, in 22 November 1969...
.
Common law
Aboriginal titleAboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
is the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
doctrine that the land rights of indigenous peoples
Indigenous peoples
Indigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....
to customary tenure
Customary land
Customary land is land which is owned by Indigenous communities and administered in accordance with their customs, as opposed to statutory tenure usually introduced during the colonial periods. Common ownership is one form of customary land ownership....
persist after the assumption of sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
. Indigenous peoples may also have certain rights on Crown land
Crown land
In Commonwealth realms, Crown land is an area belonging to the monarch , the equivalent of an entailed estate that passed with the monarchy and could not be alienated from it....
in many jurisdictions.
Australia
The foundational case of for native title in Australia is Mabo v Queensland (No 2) (1992). The National Native Title TribunalNational Native Title Tribunal
The National Native Title Tribunal is an independent body that assists people to reach timely and effective outcomes for disputes about native title in Australia....
(NNTT) is the body that investigates and mediates claims made by Aboriginal and Torres Strait Islander peoples. Native title determinations are made by the Federal Court of Australia
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
. Appeals against these determinations can be made to a full sitting of the Federal Court and then to the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
. The National Native Title Register (NNTR) is a register
Land registration
Land registration generally describes systems by which matters concerning ownership, possession or other rights in land can be recorded to provide evidence of title, facilitate transactions and to prevent unlawful disposal...
of approved determinations and is maintained by the NNTT.
Canada
The leading case for aboriginal title in CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
is Delgamuukw v. British Columbia
Delgamuukw v. British Columbia
Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, also known as Delgamuukw vs. the Queen is a famous leading decision of the Supreme Court of Canada where the Court made its most definitive statement on the nature of aboriginal title in Canada....
(1997).
New Zealand
Indigenous land rights were recognised in the Treaty of WaitangiTreaty of Waitangi
The Treaty of Waitangi is a treaty first signed on 6 February 1840 by representatives of the British Crown and various Māori chiefs from the North Island of New Zealand....
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
The foundational decision for aboriginal title in the United States is Johnson v. McIntosh (1823), authored by Chief Justice John MarshallJohn Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
.
Native Americans in the United States
Native Americans in the United States
Native Americans in the United States are the indigenous peoples in North America within the boundaries of the present-day continental United States, parts of Alaska, and the island state of Hawaii. They are composed of numerous, distinct tribes, states, and ethnic groups, many of which survive as...
have largely been relegated to Indian reservation
Indian reservation
An American Indian reservation is an area of land managed by a Native American tribe under the United States Department of the Interior's Bureau of Indian Affairs...
s managed by tribes under the United States Department of the Interior
United States Department of the Interior
The United States Department of the Interior is the United States federal executive department of the U.S. government responsible for the management and conservation of most federal land and natural resources, and the administration of programs relating to Native Americans, Alaska Natives, Native...
's Bureau of Indian Affairs
Bureau of Indian Affairs
The Bureau of Indian Affairs is an agency of the federal government of the United States within the US Department of the Interior. It is responsible for the administration and management of of land held in trust by the United States for Native Americans in the United States, Native American...
.
Mexico
The years after the Mexican RevolutionMexican Revolution
The Mexican Revolution was a major armed struggle that started in 1910, with an uprising led by Francisco I. Madero against longtime autocrat Porfirio Díaz. The Revolution was characterized by several socialist, liberal, anarchist, populist, and agrarianist movements. Over time the 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
Communal land
Communal land is a territory in possession of a community, rather than an individual or company.-Zimbabwe:...
for traditional communities was affirmed. Thus the ejido
Ejido
The ejido system is a process whereby the government promotes the use of communal land shared by the people of the community. This use of community land was a common practice during the time of Aztec rule in Mexico...
-system was created, which in practice should comprise the power of private investments by foreign corporations and absentee landlords, and entitled the indigenous
Indigenous peoples
Indigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....
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
North American Free Trade Agreement
The North American Free Trade Agreement or NAFTA is an agreement signed by the governments of Canada, Mexico, and the United States, creating a trilateral trade bloc in North America. The agreement came into force on January 1, 1994. It superseded the Canada – United States 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
Chiapas conflict
The Chiapas conflict generally refers to the Zapatista uprising and its aftermath, but has to be understood in relation to the history of marginalization of indigenous peoples and subsistence farmers in the state of Chiapas, Mexico....
)