Indigenous peoples’ rights to lands, territories and resources: selected international and domestic legal considerations

Fergus MacKay
Coordinator of the Legal and Human Rights and Three Guyanas Programmes, Forest Peoples Programme,
Moreton-in-Marsh, United Kingdom.

Indigenous peoples’ rights in international law have substantially evolved and developed in the past 20 years, so much so that today some international bodies and scholars consider that certain core principles, such as indigenous territorial and participation rights, have crystallized as norms of customary international law. These changes are also reflected - sometimes inadequately - in the domestic laws of a growing number of states. This article provides an overview of the treatment of indigenous peoples’ rights to lands, territories and resources in international law and in selected domestic jurisdictions.

INDIGENOUS PEOPLES’ RIGHTS IN INTERNATIONAL LAW

A discrete and growing body of international human rights law confirming and protecting the individual and collective rights of indigenous peoples has emerged and been concretized in the past 20 years. This body of law is still expanding and developing through the decisions of international human rights bodies, in international instruments presently under consideration by the United Nations (UN) and the Organization of American States (OAS), through incorporation of indigenous rights in conservation, environmental and development-related instruments and policies and through incorporation of rights into domestic law and practice. Taken together, this evolution of juridical thought and practice has led many to conclude that some indigenous rights have attained the status of customary international law and are therefore generally binding on states (Anaya, 1996: pp. 49 - 58; Anaya and Williams, 2001; Iorns Magallanes, 1999: pp. 238 and 242; Wiessner, 1999: p. 128).

Juridical bases and conceptual issues

Indigenous peoples’ rights in international law have four main interrelated juridical bases (Kingsbury, 2001):

1. The right of “all peoples” to selfdetermination, as defined in common Article 1 of the international human rights covenants adopted by the United Nations in 1966. The United Nations Human Rights Committee (HRC) applies this right to indigenous peoples when examining state-party reports under Article 40 of the International Covenant on Civil and Political Rights (ICCPR).^[17] This right is also applied to indigenous peoples in the UN Draft Declaration on the Rights of Indigenous Peoples and the Proposed American Declaration on the Rights of Indigenous Peoples.

2. “Indigenous rights” are aboriginal rights or rights that predate and survive alien or colonial intervention. As noted by Kreimer: “Indigenous peoples, because of their preexistence to contemporary States, and because of their cultural and historical continuity, have a special situation, an inherent condition that is juridically a source of rights” (1998: pp. 69 - 70).

3. Indigenous rights are also founded on the principle of equal protection of the law and prohibitions of racial discrimination. Read together with other human rights, such as the right to property, these fundamental principles of human rights law require substantive equality including, in some cases, affirmative action or special measures.

4. Finally, indigenous peoples’ rights are grounded in the right to cultural integrity, which is a fundamental right enshrined in a range of international instruments.

Three important conceptual issues are: 1) indigenous peoples’ rights are qualitatively and quantitatively distinct from minority rights, although there is some overlap in practice; 2) indigenous rights are both individual and collective rights, the latter being of more relevance; and 3) there is no accepted international definition of the legal concept “indigenous”. While various attempts have been made to define indigenous peoples, they have all been unsatisfactory, leading UN human rights bodies to declare that indigenous peoples have the right to define themselves and their membership according to their own traditions and customs. Others, the International Labour Organization (ILO) and the World Bank, for instance, state that self-definition as “indigenous” or “tribal” is a fundamental criterion in defining who is indigenous or tribal.

Indigenous peoples’ rights under existing international human rights instruments

It is often stated that indigenous peoples’ rights are addressed only under ILO Convention No. 169. This assertion is incorrect; indigenous peoples’ rights are recognized by, and there is well established jurisprudence under, both United Nations and regional human rights instruments and procedures. The rights recognized in these instruments relate to, among other rights, ownership, possession and use of lands and resources (historically or traditionally) occupied and used, cultural integrity, equal protection/non-discrimination, selfdevelopment, self-determination, autonomy and self-government, participation in decision-making and the right to consent to activities and the right to health and a healthy environment.

Global instruments: Articles 1 and 27 of the ICCPR are especially relevant, the latter being the basis for much of the HRC’s jurisprudence concerning indigenous peoples. Article 1 sets out the right to selfdetermination defined as the right of all peoples to “freely determine their political status”, to “freely pursue their economic, social and cultural development”, to “freely dispose of their natural wealth” and to be secure in their “means of subsistence”. This right has been applied to indigenous peoples by the HRC when examining state reports on the ICCPR. In its concluding observations on Canada’s fourth periodic report, for instance:

... the Committee emphasizes that the right to self-determination requires, inter alia, that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence (art. 1, para. 2). The Committee recommends that decisive and urgent action be taken towards the full implementation of the RCAP [Royal Commission on Aboriginal Peoples] recommendations on land and resource allocation. The Committee also recommends that the practice of extinguishing inherent aboriginal rights be abandoned as incompatible with article 1 of the Covenant.^[18]

The HRC has also related the right to self-determination to the right of indigenous peoples to enjoy their culture under Article 27 of the ICCPR in its complaints-based jurisprudence.^[19]

Article 27 protects linguistic, cultural and religious rights and, in the case of indigenous peoples, includes land and resource, subsistence and participation rights^[20]. The HRC issued a General Comment in 1994, which elaborates on indigenous rights under Article 27^[21], and in July 2000 stated that Article 27 requires that “necessary steps should be taken to restore and protect the titles and interests of indigenous persons in their native lands” and that “securing continuation and sustainability of traditional forms of economy of indigenous minorities (hunting, fishing and gathering), and protection of sites of religious or cultural significance for such minorities ... must be protected under article 27 ...”.^[22]

Article 30 of the Convention on the Rights of the Child explicitly mentions indigenous children and utilizes language consistent with Article 27 of the ICCPR. It protects cultural rights and in the case of indigenous children (and by implication, of indigenous people in general) land, resource and participation rights. This protection is confirmed in the Committee on the Rights of the Child’s 2003 Recommendations on indigenous children, which “[a]cknowledges that, as stated in the Human Rights Committee’s General Comment No. 23 on the rights of minorities (1994) and in ILO Convention 169, the enjoyment of the rights under article 30, in particular the right to enjoy one’s culture, may consist of 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.”^[23]

The UN Committee on Economic, Social and Cultural Rights (CESCR) has highlighted state obligations to recognize and respect indigenous peoples’ land and resource rights under the International Covenant on Economic, Social and Cultural Rights. In 1998, for instance, the Committee stated that it “... views with concern the direct connection between Aboriginal economic marginalization and the ongoing dispossession of Aboriginal people from their lands ... and endorses the recommendations of RCAP that policies which violate Aboriginal treaty obligations and the extinguishment, conversion or giving up of Aboriginal rights and title should on no account be pursued by the State Party”.^[24] It then recommended that the state party“take concrete and urgent steps to restore and respect an Aboriginal land and resource base adequate to achieve a sustainable Aboriginal economy and culture”.^[25]

The CESCR has also referred to the rights of indigenous peoples in connection with the right to self-determination. In 2002 it stated that: “[t]aking note of the duty in article 1, paragraph 2, of the Covenant, which provides that a people may not ‘be deprived of its means of subsistence’, States parties should ensure that there is adequate access to water ... for securing the livelihoods of indigenous peoples”.^[26] The Committee also observed that indigenous peoples are especially vulnerable to violations of the right to food in cases where “access to their ancestral lands may be threatened”^[27] and has expressed concern about violations of the right to health and to culture:

The Committee notes that, in indigenous communities, the health of the individual is often linked to the health of the society as a whole and has a collective dimension. In this respect, the Committee considers that development-related activities that lead to the displacement of indigenous peoples against their will from their traditional territories and environment, denying them their sources of nutrition and breaking their symbiotic relationship with their lands, has a deleterious effect on their health.^[28]

Read together, Articles 1(4) and 5 of the International Convention on the Elimination of All Forms of Racial Discrimination provide for, among others, special measures for protection of indigenous ownership and control of historically occupied lands and resources and for indigenous informed consent to matters that may affect them. These provisions are confirmed by the Committee on the Elimination of Racial Discrimination’s 1997 General Recommendation XXIII. Therein it called upon states-parties to “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” and 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 these lands and territories”.^[29] The Committee later recognized indigenous peoples’ right to “effective participation ... in decisions affecting their land rights, as required under article 5© of the Convention and General Recommendation XXIII of the Committee, which stresses the importance of ensuring the ‘informed consent’ of indigenous peoples”.^[30]

International Labour Organization Convention No. 169, together with its predecessor ILO No. 107, is the only binding international treaty to deal exclusively with indigenous and tribal peoples’ rights. ILO 169 is based largely upon the principle that indigenous and tribal peoples should “enjoy as much control as possible over their own economic, social and cultural development”. It recognizes that indigenous and tribal peoples “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” (Article 7[1]). It contains six articles on indigenous and tribal land and resource rights and a number of provisions relating to participation in decision-making and consultation with the objective of achieving consent.

ILO 169’s provisions on territorial rights are framed by Article 13(1), which requires that states recognize and respect the special spiritual, cultural and economic relationship that indigenous peoples have with their lands and territories and especially “the collective aspects of this relationship”. Article 14 requires that indigenous peoples’ collective “rights of ownership and possession ... over the lands which they traditionally occupy shall be recognized” and that states “shall take steps as necessary to identify” these lands and to “guarantee effective protection of rights of ownership and possession”. Article 13(2) defines the term “lands” to include “the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use”.

ILO 169’s predecessor, ILO 107 (adopted in 1957), provides in Article 11, “The right of ownership, collective or individual, of the members of the population concerned over the lands which these populations traditionally occupy shall be recognized.” Interpreting this article in a complaint involving tribal people in India, the ILO Committee of Experts held that the rights that attach under Article 11 also apply to lands presently occupied irrespective of immemorial possession or occupation. The Committee stated that the fact that the people in question had some form of relationship with land presently occupied, even if only for a short time, was sufficient to form an interest, and therefore rights to that land and attendant resources (ILO, 1988: p. 287).

Regional instruments: The jurisprudence of the Inter-American Commission on Human Rights (IACHR) pertaining to indigenous peoples is considerable. It has found that indigenous peoples’ property rights derive from their own forms of land tenure and traditional occupation and use, not exclusively from grants by states.^[31] It has related these rights on a number of occasions to cultural integrity, thereby recognizing the fundamental connection between indigenous land tenure and resource security and the right to practice, develop and transmit culture free from unwanted interference. For instance, in 1997 the IACHR stated, “For many indigenous cultures, continued utilization of traditional collective systems for the control and use of territory are [sic] essential to their survival, as well as to their individual and collective well-being. Control over the land refers to both its capacity for providing the resources which sustain life, and to ‘the geographical space necessary for the cultural and social reproduction of the group’” (IACHR, 1997: at 115).

In the Mayagna (Sumo) Awas Tingni Community case, the Inter-American Court of Human Rights observed that:

By virtue of the fact of their very existence, indigenous communities have the right to live freely on their own territories; the close relationship that the communities have with the land must be recognized and understood as a foundation for their cultures, spiritual life, cultural integrity and economic survival. For indigenous communities, the relationship with the land is not merely one of possession and production, but also a material and spiritual element that they should fully enjoy, as well as a means through which to preserve their cultural heritage and pass it on to future generations.^[32]

Finding: “The customary law of indigenous peoples should especially be taken into account because of the effects that flow from it. As a product of custom, possession of land should suffice to entitle indigenous communities without title to their land to obtain official recognition and registration of their rights of ownership,”^[33] the Court held, among other conclusions, that “the State must adopt measures of a legislative, administrative, and whatever other character necessary to create an effective mechanism for official delimitation, demarcation, and titling of the indigenous communities’ properties, in accordance with the customary law, values, usage, and customs of these communities”.^[34]

The Awas Tingni case is highly important because of its affirmation of the validity of indigenous peoples’ own forms of communal property and other rights in a binding decision. It is the first time that an international judicial body has ruled on this issue and confirmed that indigenous peoples’ territorial rights arise by virtue of traditional occupation and use and indigenous forms of tenure rather than from grants, recognition or registration by the state. This and the other principles set forth by the Court are applicable to all similar cases throughout the Americas. In effect, the Court held that aboriginal title - rights to lands and resources based upon traditional or immemorial occupation and use and defined by indigenous laws and customs pertaining to land tenure - is part of binding inter-American human rights law. In the 2002 Mary and Carrie Dann case, the IACHR stated:

[G]eneral international legal principles applicable in the context of indigenous human rights^[35] ... include:

the right of indigenous peoples to legal recognition of their varied and specific forms and modalities of their control, ownership, use and enjoyment of territories and property;

the recognition of their property and ownership rights with respect to lands, territories and resources they have historically occupied; and where property and user rights of indigenous peoples arise from rights existing prior to the creation of a state, recognition by that state of the permanent and inalienable title of indigenous peoples relative thereto and to have such title changed only 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. This also implies the right to fair compensation in the event that such property and user rights are irrevocably lost.^[36]

It interpreted the American Declaration on the Rights and Duties of Man to require “special measures to ensure recognition of the particular and collective interest that indigenous people have in the occupation and use of their traditional lands and resources ...”.^[37]

Under the African Charter on Human and Peoples’ Rights property rights are guaranteed under Article 14. Articles 19 - 24 of the African Charter set out the rights of peoples, including the right to self-determination, the right to freely dispose of natural wealth and the right to a satisfactory environment. In May 2002, the African Commission on Human and Peoples’ Rights unambiguously found a violation of the Ogoni people’s right to freely dispose of its natural wealth and to be secure in its means of subsistence as guaranteed by Article 21.^[38] The Commission noted in general, “With respect to socio economic rights, this means that the State is obliged to respect the free use of resources owned or at the disposal of the individual alone or in any form of association with others, including the household or the family, for the purpose of rights-related needs. And with regard to a collective group, the resources belonging to it should be respected, as it has to use the same resources to satisfy its needs.”^[39]

Emerging standards: the UN and OAS Declarations

The UN Draft Declaration on the Rights of Indigenous Peoples and the Proposed American Declaration on the Rights of Indigenous Peoples are currently being developed by the UN and the Organization of American States, respectively. While these instruments are placed here under the “emerging rights” section, it is important to note that the distinction between rights of general application (“established”) and “emerging” indigenous rights is somewhat artificial, as the majority of the so-called “emerging standards” either build upon existing human rights or are contextualized restatements or elaborations thereof (IACHR, 1999: ch. X, para. 9).

Both the UN Draft and OAS Proposed Declarations build upon existing standards and attempt to redefine prevailing political, economic and cultural relations between indigenous peoples and states. They do so by recognizing rights in three main interrelated areas: 1) self-determination, autonomy and self-government; 2) lands, territories and resources; and 3) political participation rights. Guarantees for indigenous lands, territories and resources are expansive, requiring legal recognition, titling and demarcation of lands traditionally occupied and used, protection of the total environment thereof, restitution of and compensation for lost lands and various measures of participation in extraterritorial activities that may affect territorial and subsistence rights, the environment and cultural integrity. Article 26 of the UN Draft Declaration, for instance, provides that:

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 sea, 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 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 or encroachment upon these rights.

Instruments focused on environment and development

A number of instruments concerned with environment and development have incorporated indigenous peoples’ rights and issues, particularly those adopted at the UN Conference on Environment and Development in 1992. These instruments include the Convention on Biological Diversity (CBD), the Rio Declaration and Agenda 21, Chapter 26 especially. The CBD deals with indigenous peoples’ rights and interests in a number of different ways, most notably in Articles 10© and (d) and 8(j). Article 8(j) focuses on protection of indigenous traditional knowledge, while Article 10© protects indigenous peoples’ “customary use of biological resources in accordance with traditional cultural practices ...”. Article 10© has been interpreted to require recognition of and respect for indigenous tenure over terrestrial and marine estates, control over and use of natural resources and respect for indigenous self-determination and selfgovernment (CBD, 1997: p. 18).

INDIGENOUS PEOPLES’ RIGHTS IN DOMESTIC LAW: AN OVERVIEW

Aboriginal title in the British Commonwealth

Aboriginal title, also known as “Native” or “Indian” title, consists of the rights of indigenous peoples to their lands, territories, resources and waters recognized by the common law. The common law is a body of judge-made law exported to and used in the majority of former British colonies, most of which today are included in the Commonwealth of Nations (the “British Commonwealth”). Today these countries’ legal systems remain grounded in the common law as developed locally and as modified by local statutory and constitutional provisions.

Five hundred years of aboriginal title jurisprudence

The doctrine of aboriginal title originated in the writings of Spanish jurists of the fifteenth and sixteenth centuries (Lindley, 1926: pp. 12 - 17; Bartlett, 2000: p. 73), in particular Francisco de Victoria, who concluded that “the aborigines in question were true owners, before the Spaniards came among them, both from the public and the private point of view” (1917: p. 128) and that the consent of indigenous peoples had to be obtained before Europeans could acquire lands from them (ibid.: pp. 120 - 28 and 140 - 146). Victoria’s theories on aboriginal title were incorporated into Spanish as well as Dutch and English laws applying to colonial holdings and were widely accepted by international law scholars of the sixteenth and seventeenth centuries (Cohen, 1982: pp. 50 - 55). The Supreme Court of the United States relied upon them in its recognition and affirmation of aboriginal title in the early nineteenth century.^[40]

Outside of the United States, the Supreme Court of New Zealand was the first to recognize aboriginal title when it decided R v. Symonds in 1847 and found, “Whatever may be the opinion of jurists as to the strength or weakness of the Native title ... it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers.”^[41] This finding was affirmed in three separate cases decided by Privy Council between 1901 and 1913, which held that the title of Maori tribes to the possession and occupancy of their lands required respect.^[42] The Privy Council reached the same conclusion in three cases involving African colonies in the first half of the twentieth century.^[43]

It was not until the last quarter of the twentieth century, however, that other Commonwealth countries followed suit. The first was Canada, whose Supreme Court first recognized the existence and enforceability of aboriginal title in Calder v. Attorney-General of British Columbia in 1973. In that case, Justice Judson stated that “the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means ...”.^[44] Almost 20 years later, the High Court of Australia issued its landmark decision in Mabo v. Queensland No. 2, declaring that “native title has its origins in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory”.^[45] Both Mabo and Calder have been followed by a series of cases further affirming the existence and enforceability of aboriginal/native title and elaborating its content.^[46] In Australia today, native title is regulated by statute, the Native Title Amendment Act 1998; in Canada, it is guaranteed under Section 35 of Canada’s 1982 Constitution.

Judicial recognition of aboriginal title is not peculiar to the British Commonwealth. In Adong bin Kuwau v. Johor, the Malaysian Court of Appeal affirmed a trial court ruling that the Jakun tribe had a proprietary “right to continue to live on their lands, as their forefathers had lived ...”.^[47] More recently, the Sabah and Sarawak High Court (Malaysia) in Nor Anak Nyawai et al. v. Borneo Pulp Plantation et al. followed the decision in Adong bin Kuwau. Observing that “the common law respects the preexisting rights under native law or custom...”,^[48] the Court held and ordered that “the Plaintiffs are entitled to exercise native customary rights over the disputed area” to the exclusion of all others.^[49]

In October 2003, aboriginal title was recognized as part of the law of South Africa. In Alexkor Ltd and the Republic of South Africa v. The Richtersveld Community and Others, the South African Constitutional Court stated, “The Privy Council has held, and we agree, that a dispute between indigenous people as to the right to occupy a piece of land has to be determined according to indigenous law ‘without importing English conceptions of property law’.”^[50] The Court further observed that it was “satisfied that under the indigenous law of the Richtersveld Community communal ownership of the land included communal ownership of the minerals and precious stones”.^[51] The Court also found that “failure to recognise and accord protection to indigenous law ownership while, on the other hand, according protection to registered title” constituted racial discrimination in violation of constitutional guarantees.^[52]

Sources of aboriginal title

Aboriginal title is a collective right to land and resources derived from occupation and use of the same land prior to the acquisition of sovereignty by the British crown (McNeil, 1989). It is considered to be a unique form of property insofar as it does not conform to traditional feudal estates in land known under the common law, which flow ultimately from the Crown, but rather is based upon pre-sovereignty occupation and indigenous peoples’ own laws and customs. It is capable of recognition and enforcement under the common law because that law considers, absent competing and better title, occupation to be proof of possession, and as stated by the Supreme Court of Canada, “Possession is of itself proof of ownership.”^[53]

Aboriginal title is also based upon British colonial constitutional law, a set of unwritten principles that applied to all British colonies and, unless modified by local law, remains part of the law of former colonies. Slattery observes, “Although the doctrine was a species of unwritten British law, it was not part of English common law in the narrow sense, and its application to a colony did not depend on whether or not English common law was introduced there. Rather the doctrine was part of a body of fundamental constitutional law that was logically prior to the introduction of English common law and governed its application in the colony” (Slattery, 1987: p. 737; in accord, McHugh, 1991: p. 97). One of these principles, confirmed by the Privy Council and national courts on numerous occasions, is that “a mere change in sovereignty is not to be presumed to disturb rights of private owners ...”.^[54]

Nature and content of aboriginal title

The content of the title or the extent of land to which it applies is determined by the practices, customs and laws of the indigenous people(s) that maintain a connection with the land. It cannot be determined arbitrarily, but only by reference to factual occupation and use of land and resources - what the common law recognizes as proof of possession - and indigenous customs, practices, usages and laws. These practices and usages include hunting, fishing, agriculture, gathering, ceremonial and religious functions, seasonal migrations and trade with neighbours. Aboriginal title also extends to coastal and offshore fisheries.

According to the Supreme Court of Canada, “[A]boriginal title confers more than a right to engage in site-specific activities which are aspects of the practices, customs and traditions of distinctive aboriginal cultures. Site specific rights can be made out even if title cannot. What aboriginal title confers is the right to the land itself.”^[55] Further, aboriginal title includes “the right to exclusive use and occupation”^[56] and “the ability to exclude others from lands held pursuant to that title”.^[57] In Mabo, Brennan J maintained that “The ownership of the land within a territory in the exclusive occupation of a people must be vested in that people.”^[58] Consequently, the High Court ordered in that case that the aboriginal people in question had the right “as against the whole world to possession, occupation, use and enjoyment of the lands” at issue.^[59]

United States, Canadian, New Zealand and South African cases have also held that aboriginal title includes mineral rights, rights to exploit timber, fish and game commercially, and water rights.^[60] In Delgamuukw v. British Columbia, for example, Lamer CJ stated on the basis of a previous case that “aboriginal title also encompass [sic] mineral rights, and lands held pursuant to aboriginal title should be capable of exploitation in the same way, which is certainly not a traditional use for those lands”.^[61]

Problems with aboriginal title: extinguishment

In all countries that have developed jurisprudence on aboriginal title, that jurisprudence recognizes the power of the crown or state to extinguish aboriginal title unilaterally, normally without indigenous consent and just compensation. This practice of extinguishment deviates substantially from national laws permitting taking of land from non-indigenous persons and is, therefore, discriminatory (Daes, 2001: pp. 14 - 16). Complaints made by indigenous peoples to international human rights bodies have confirmed that the practice of extinguishment is discriminatory and contravenes a number of other human rights guarantees, including the right to self-determination.^[62]

Indigenous rights in Spanish colonial law: the “Regalian Doctrine”

The Regalian Doctrine, also known as “jura regalia”, is a fiction of Spanish colonial law that has been said to apply to all Spanish colonial holdings. It refers to the feudal principle that private title to land must emanate, directly or indirectly, from the Spanish crown with the latter retaining the underlying title. Lands and resources not granted by the Crown remain part of the public domain over which none but the sovereign holds rights. In much the same way that aboriginal title jurisprudence in Commonwealth countries has rejected the notion that indigenous peoples’ land rights were voided by the British crown’s acquisition of sovereignty, the proponents of the Regalian Doctrine have also overstated the rights of the Spanish crown. While practice on the ground was substantially different, from the earliest days of Spanish colonial expansion both Spanish and Papal laws required respect for indigenous peoples’ preexisting property rights, thereby exempting them from the application of the Regalian Doctrine.^[63]

The Regalian Doctrine has been entrenched in the Constitution of the Philippines since 1935.^[64] In that country, a former Supreme Court judge challenged the constitutionality of the Indigenous Peoples’ Rights Act of 1997 (IPRA), arguing that recognition of indigenous land rights in the Act violated the Regalian Doctrine because it amounted to an unlawful deprivation of the state’s ownership over lands of the public domain as well as minerals and other natural resources.^[65] In a split decision, the Supreme Court upheld the constitutionality of IPRA. Most of the judges upholding IPRA stated, in opinions consistent with previous jurisprudence,^[66] that indigenous land rights predated acquisition of sovereignty by Spain, were private property rights that were never part of the state’s public domain, and therefore were not affected by the Regalian Doctrine.

With regard to Central and South America, whatever the status of the Regalian Doctrine in the past, today it holds little relevance outside of state ownership of the subsoil and other natural resources for three main reasons: 1) the majority of states in Central and South America, including Mexico, are parties to ILO 169, which obliges them to recognize and protect indigenous rights to lands, territories and resources derived from traditional occupation and use; 2) as the judgment of the Inter-American Court of Human Rights in the Awas Tingni case demonstrates, American states are obligated by inter-American human rights law to recognize and guarantee indigenous property rights derived from indigenous forms of tenure and defined by indigenous law and custom; and 3) the vast majority of Latin American states have adopted constitutional and legislative provisions in the past 20 - 30 years that, to varying degrees, recognize preexisting indigenous land and renewable resource rights.

This last point was made by the IACHR in its 1999 report on Colombia: “As several Colombian laws have recognized that the indigenous peoples had the right to have the State recognize their full ownership over such areas, not as a discretional act of the State but rather as an obligation, these proceedings do not constitute mere transfers but rather should be seen as a process of ‘production of evidence establishing the prior ownership of the communities’” (IACHR, 1999: ch. X, para. 19).

Indigenous rights under the Napoleonic Code in French-speaking Africa

With the exception of its early colonies in North America, French colonial law paid little attention to indigenous land or other rights. This was especially the case in what is today referred to as “Frenchspeaking Africa”. Despite recognizing some measure of indigenous sovereignty and ownership, as evidenced by treaties of cession (Lindley, 1926: pp. 33 - 36), French colonial law facilitated and supported a highly centralized colonial administration and left little room for continued indigenous ownership based upon customary law and traditional occupation. While some laws were passed recognizing customary law regimes, the latter were only valid to the extent that they did not contradict the Code Civil or colonial land legislation, both of which privileged colonial settlers over indigenous land holders. As one author puts it, this concerted move towards centralized authority “led the colonial state to seek to break the power of customary authorities and replace them with state management, particularly regarding forests, fisheries, etc.” (Lavigne Delville, 2000: p. 99).

This colonial legal heritage was for the most part retained by postcolonial Frenchspeaking states. Although the situation varies from country to country, control over land and resources was generally further centralized in the name of national unity through nationalization programmes that amounted to an extinguishment of customary regimes and made indigenous peoples illegal occupiers of state domain lands. While in the 1980s some efforts were made at legal reform aimed at incorporating customary tenure rights into the national legal system, indigenous peoples in Frenchspeaking Africa today largely remain without recognized rights to their lands and resources.^[67] As noted above, the extent to which international human rights law may affect this conclusion has yet to be seen. Finally, it should be noted that under the legal systems of French-speaking African states, indigenous land rights may be recognized by constitutional amendment or, assuming consistency with the constitution, by organic law and subsidiary legislation.

CONCLUSION: OBSTACLES TO RECOGNITION OF INDIGENOUS PEOPLES’ RIGHTS

As the preceding discussion illustrates, recognition of indigenous peoples’ rights to lands, territories and resources has increased in recent years at both the international and domestic levels. However, many of the gains made on paper have yet to be realized in practice, and the laws of many states remain substandard in relation to human rights guarantees. Violations of indigenous peoples’ land and resource rights, coupled with attendant violations of economic, political, spiritual, social and cultural rights, are all too common. This final section highlights a few of the obstacles to the full recognition of indigenous peoples’ territorial rights.

These obstacles are amply outlined in Daes’ final report for the UN on indigenous land rights, the most fundamental of which is identified as “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” (2001: p. 12). With regard to the former, she states:

Countries in many parts of the world are unaware 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 “crown” lands. Although the indigenous people concerned regard themselves, with good reason, as owning the land and resources they occupy and use, the country itself disposes of the land and resources as if the indigenous people were not there.

(Ibid.)

The other problem areas are listed as follows: 1) discriminatory laws and policies affecting indigenous land rights, including according indigenous land rights second class or inferior status and unilateral abrogation of treaty rights; 2) failure to demarcate and failure to enforce or implement laws protecting indigenous lands; 3) problems concerning land claims settlements or return of lands; 4) expropriation of indigenous lands in the national interest, particularly in the name of development; 5) removal and relocation; 6) other policies or programmes including allotment of lands to individuals and state control of sacred or cultural sites; 7) failure to protect the integrity of indigenous territories; and 8) the failure to recognize and respect indigenous control of their territories as part of the right to selfdetermination (ibid.: pp. 12 - 26).

Expropriation of indigenous lands in the name of national development is both a symptom and an underlying cause of the overall failure of states to give adequate protection to indigenous land and resource rights. It is a symptom in the sense that, if indigenous rights were adequately recognized and protected, the resources pertaining to indigenous lands would not be available for exploitation without indigenous consent. It is an underlying cause because often states are opposed to recognizing indigenous rights precisely because indigenous lands are rich in exploitable natural resources or the lands themselves are prime agricultural production zones. Today, exploitable resources also include biological resources and indigenous knowledge pertaining thereto and indigenous lands containing high levels of biological diversity, which are often expropriated for national parks and other protected areas.

Both the HRC and the IACHR have stated a number of times that state development plans must account for and respect indigenous peoples’ rights.^[68] As one scholar puts it, the principle of state sovereignty over natural resources in international law “includes the duty to respect the rights and interests of indigenous peoples and not to compromise the rights of future generations” (Schrijver, 1997: p. 391). These rights include indigenous ownership and control over lands, territories and resources traditionally owned or otherwise occupied and used.

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