Indigenous land rights
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 economics.
Indigenous land claims have been heard, with varying degrees of success on the national and international level, since the time of colonization. Such claims may be based upon the principles of international law, treaties, common law, or domestic constitutions or legislation.
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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
The foundational case of for native title in Australia is Mabo v Queensland (No 2) (1992). The National Native Title Tribunal (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.
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."
The foundational decision for aboriginal title in the United States is Johnson v. McIntosh (1823), authored by Chief Justice John Marshall.
Native Americans in the United States have largely been relegated to Indian reservations managed by tribes under the United States Department of the Interior's Bureau of Indian Affairs.
Civil law
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
Notes
- ^ Eede, Joanna (2009). We are One: A Celebration of Tribal Peoples. Quadrille Publishing. ISBN 1844007294.
References
- 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 019514869X
- Snow, Alpheus Henry. 1919. The Question of Aborigines in the Law and Practice of Nations.
External links
- For Land Rights in Australia, see Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Reports, 1994–2009 http://www.humanrights.gov.au/social_justice/sj_report/ and Native Title Reports, 1994–2009 http://www.humanrights.gov.au/social_justice/nt_report/index.html
