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Inquiries and Reports - International
Charlene Yates
Indigenous Land Rights and Resource Management in the Commonwealth Project
Commonwealth Policy Studies Unit
March 2004
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.[1]
The Commonwealth Lawyers Association, in partnership with the Commonwealth Policy Studies Unit [(‘CPSU’)], proposes to embark on a project specifically orientated around Indigenous Land Rights and Resource Management in the Commonwealth. The project will consider a representative cross section of 12 Commonwealth countries. The focus will be on Australia, New Zealand, Papua New Guinea, Canada, Guyana, South Africa, Cameroon, Tanzania, Botswana, India, Bangladesh and Sri Lanka. The aim of the project has two interrelated aspects. Firstly, to understand the specific issue of indigenous land rights and resource management. And secondly, to assist the Commonwealth in recognising and responding to the right of indigenous peoples to be major players in the management and development of their traditional lands and resources; and to have enhanced rights of access to, use and control of their ancestral lands.
This report aims to illustrate the conceptual framework of the project and will serve the purpose of highlighting that the issue of land rights is an important matter that the Commonwealth must address. From a legal perspective the issue is being domestically contained and not being resolved in any systematic way. The opportunity for Commonwealth countries to learn from shared experiences is being lost.
At the international level, the relationship between indigenous peoples and land has been expertly explored by United Nations Special Rapporteur, Mrs. Erica-Irene A Daes in her report on ‘Indigenous Peoples and their Relationship to Land’.[2] Land is central to the lives of indigenous peoples. It is the basis for their economic survival, spiritual well-being and cultural identity. The concept of land embraces the whole territory they use, including forests, rivers, mountains, sea, the surface as well as the sub-surface, and natural resources. This unique conception of land and environment requires envisaging particular rights for indigenous peoples. It is from this basis that land rights and resource management resonate. The assertion of indigenous rights to land and resources is taken to be vital to their survival and identity.
As the United Nations Decade on Indigenous Peoples (1995–2004) draws to a close, it is timely to review the Commonwealth’s progress in relation to indigenous rights, in particularly land rights and resource management. In contrast to the UN acknowledgement of indigenous peoples and their relationship to land, the Commonwealth has no policy on indigenous peoples let alone a specific policy addressing indigenous land rights. A commitment was made by the Commonwealth Heads of Government at the Lusaka summit in 1979, to pay ‘special attention’ to ‘indigenous minorities’ and to make ‘special provisions’ for ‘indigenous populations’.[3] While similar commitments have been fulfilled at the international level, the Commonwealth has failed to follow up on theirs. The Harare Declaration (1991) acknowledges the existence of a common concern among Commonwealth member states for human rights, yet it does not include any specific reference to indigenous rights. Indigenous rights should be an integral part of the broader Commonwealth human rights policy. Refraining from inclusion of indigenous peoples amounts to ignoring the approximately 150 million living in the Commonwealth, which translates to a third of the world’s indigenous population.
Despite the lack of official recognition, the issue of indigenous land rights is increasingly being raised at various Commonwealth fora. The Kingstown Declaration on Land and Development adopted by the Law Ministers in 2002 recognised that land can be a source of life, livelihood and income. It stressed the importance of the role of Law Ministers in debating ‘the strong link between the use, access to, and ownership of land and development and poverty reduction’. A commitment was made to address the needs of ‘communities and groups’ which have been dispossessed of their lands; and Ministers recognised ‘customary law’ relating to land. While the Commonwealth Secretariat’s paper, Strategies for Enhancing Democracy by Eliminating Legal Barriers to Development (prepared in advance of the Law Ministers meeting) refers to ‘indigenous peoples and women often lacking equitable and sufficient access to land’ (emphasis added), the use of the term ‘indigenous peoples’ was left out of the final text.[4]
The Commonwealth Expert Group on Development and Democracy has also explored the link between development and land rights in the Manmohan Singh Report prepared for the Commonwealth Heads at their meeting in Abuja, Nigeria 2003. In section 4.2, Pro-Poor Economic and Social Policies, paragraph 114, notes that ‘[a]ccess to land, and effective systems of property titling and registration, are widely accepted as essential to development’. Following from the Kingstown Declaration, paragraph 114 states that ‘land has been unable to play its full role in development due to a number of problems ... and limits on the right of indigenous peoples to own, develop, control and use their lands and territories’ (emphasis added). The report goes on to note in the following paragraph that ‘[l]egal and judicial frameworks must adapt to confront these problems’. The report was endorsed by the Commonwealth Heads of Government, however it remains to be seen how the Commonwealth will respond to the challenges raised by the report in relation to indigenous rights, in particular, indigenous land rights.
Both the Kingstown Declaration and the Manmohan Singh report place the issue of land and development in the context of poverty reduction and achieving the Millennium Development Goals. Research conducted by the CPSU as part of its Indigenous Rights in the Commonwealth Project (2001–2004), illustrates that indigenous peoples, whether they live in an industrialised country or a developing one, are among the most poverty-stricken inhabitants of the Commonwealth.[5] The contemporary socio-economic, political, legal and cultural status of indigenous peoples reveal disempowerment, vulnerability and arginalisation with regard to land rights and also jobs, education, health, culture, language. If the Commonwealth is to be at the forefront in international efforts to reduce and ultimately eliminate poverty, it cannot ignore the particular situation of its indigenous peoples. Therefore, consideration of the role of land as part of development and its effect in reducing poverty must also address indigenous land rights and resource management.
It was recognised in Abuja that the indigenous perspective is an integral part of the debate on land and development; therefore the challenge for the Commonwealth to respond has been set. The Commonwealth Secretariat’s new Programme of Action focuses on indigenous peoples, women and land rights. It remains to be seen as to whether indigenous peoples will be included in the Legal and Constitutional Affairs Division’s new three-year policy. To further the case for a Commonwealth interest, addressing indigenous land rights would be serving the principles of governance and cultural diversity that are central to the Commonwealth’s Human Rights Policy.
A comprehensive review of Indigenous peoples’ land rights concerns in the Commonwealth is therefore necessary. The nature of indigenous land rights and the contemporary problems it poses are evident in the following countries: Australia (where the recent Yorta Yorta judgement of 2002 appears to revert a decade of progress since the recognition of native title in the 1992 Mabo decision); New Zealand (where the Maori continue to suffer from landlessness in the midst of ongoing disagreement over the status of the Treaty of Waitangi); Papua New Guinea (where the Maisin peoples customary land rights are continually being threatened by government and forestry companies alike); Bangladesh (where government settlement programmes and development policies continue to threaten the land rights of the Jumma people in the Chittagong Hill Tracts); Sri Lanka (where government assimilation policies prevent the Wanniyala-Aetto from returning to the forest); India (despite the recent Supreme Court ruling on the Samata case banning the transfer of ‘tribal’ land to ‘non-tribals’ for mining purposes, Adivasis are still under constant threat of eviction); Canada (where the signing of indigenous land claim agreements extinguishes native title); Guyana (where many Amerindian communities are still seeking recognition of their land rights, whilst large-scale mining permits continue to be granted for areas occupied by ancestral lands); Cameroon (where the forest peoples are engaged in disputes over land tenure, including the Bakwari case before the African Commission on Human and Peoples’ Rights); Tanzania (where the hunter-gatherer community of Hadzabe, as well as the indigenous pastoralist Barbaig and Maasai are loosing access to resources in their ancestral lands due to national development programmes); Botswana (where the Khwe/Bushmen have not been able to obtain secure land and resource tenure rights, in the face of forced relocation due to commercial activities on their ancestral lands); and South Africa (where, more positively, in October 2003, the Constitutional Court in the Richtersveld case has for the first time explicitly recognised indigenous people’s claims to ancestral lands).
Indigenous land issues are a pan-Commonwealth concern. The issue of land rights has arisen in every inhabited territory colonised in the Commonwealth. The problem has been born out of this colonial legacy and the Commonwealth has to face up to its responsibility to indigenous peoples and their rights to land. There has been some progress made in dealing with this issue within the domestic sphere of individual countries, however there is a danger that it will remain domestically contained despite the fact that the problems relating to land and resources are arguably the direct result of colonialism, and are therefore part of a shared Commonwealth history and responsibility.
So what have the different Commonwealth states done to recognize and protect indigenous land rights, and are there commonalities in practice based on shared legal history? Looking at the body of state practice in a cross section of Commonwealth countries the question arises as to whether legal measures are adequately reconciling the indigenous perspective into a language of rights. Constitutional provisions, land policy and legislation, and developing case law form the legal framework in which the problem is being addressed.
The constitutional protection afforded to indigenous peoples in the twelve Commonwealth countries of focus is minimal. While most constitutions provide for human rights and land rights and contain recognition for the principle of non-discrimination, it seems to be standard Commonwealth practice, even in post-colonial constitutions, to refrain from using the term ‘indigenous’. Without such recognition, attempts to make cases for indigenous rights are legally challenging. It is not therefore surprising to find that it is even rarer for a state constitution to expressly protect the land and resource rights of indigenous peoples. Canada however provides a positive example in that the Constitution Act of 1982 gives constitutional protection to then-existing aboriginal land rights; and also land claim settlements and treaties negotiated since are given constitutional protection.
A number of countries have passed legislation specifically designed to recognize or protect indigenous rights to land and resources. Such legislation is based on the doctrine of aboriginal/native title. The doctrine of native title advocates the recognition of indigenous peoples as the original inhabitants thereby allowing their assertion over traditional land and resources.
In the Commonwealth a substantial body of state practice indicates executive or legislative recognition of aboriginal/native title. There is debate over the question of judiciability outside Australia, Canada and New Zealand. However, Albert Barume explores the argument that despite the lack of constitutional protection in Africa, the notion of ‘aboriginal title’ appears to be relevant in Cameroon, South Africa and Tanzania.[6]
The nature and content of the doctrine is being played out in domestic courts across the Commonwealth, which indicates that the recognition of native title does not automatically equate to indigenous peoples successfully acquiring ownership, use and access to land and resources. For example, 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 Amendment Act, which has been found to extinguish or impair indigenous rights. The UN Committee on the Elimination of Racial Discrimination have condemned the Australian government, saying that the ‘rolling back’ of the Native Title Act amounts to racial discrimination and is therefore inconsistent with Australia’s obligations under international law.[7]
Alternatively, land rights are addressed within a broader legislation dealing with a host of indigenous rights. The 1976 Amerindian Act in Guyana and the Waitangi Treaty of 1840 addressing Maori rights in New Zealand are both relevant examples of this.
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 land and forestry legislation of countries such as Tanzania. The Tanzanian Land Policy of 1995 and the attendant land laws (Land Act No. 4 and Village Land Act No.5 of 1999) partially provide for the rights to land of rural communities, mainly villagers. The Village Land Act is especially meant to explain the various procedures to access, own and control land and other natural resources in a particular village. In 2002 the Tanzanian parliament passed the Forest Policy/Law that allows villagers to actively participate in conservation of village forests by establishing Village Forests Reserves (‘VFRs’). However there is no official recognition for indigenous groups like Hadzabe and they essentially have no security of tenure on land and other resources.[8]
Decisions in legal cases from common-law jurisdictions, like the Mabo case and the recent Richtersveld case, have repercussions far beyond the shores of Australia and South Africa respectively. The landmark decision of Mabo v Queensland (No 2)[9] essentially reversed two centuries of established precedent, with the High Court declaring that Aboriginals had valid title to their ancestral lands thereby establishing the doctrine of native title in Australian law and providing a dramatic precedent for other indigenous communities. The recent landmark ruling of the South African Constitutional Court in Alexkor Ltd v Richtersveld Community and Ors,[10] recognises indigenous peoples' native title claims for the first time in Africa.
The emerging domestic case law on indigenous land rights reveals that legal precedents in one country can potentially act as precedents across the Commonwealth at least where common law exists, which presents the opportunity to identify cases of best practice.
Jurisprudence is also being developed by activities at the regional level as well. In the absence of any judicial mechanisms in Cameroon, the Bakweri Land Problem was taken to the African Commission in September 2002.[11] The Bakweri Land Claims Committee has been at the forefront of the Bakweri campaign for compensation for, and restitution of, their lands expropriated by the colonial powers. A decision is yet to be made on the admissibility of the case. It is hoped that this avenue for the indigenous peoples of Africa will be another source for developing a body of Commonwealth case law. While decisions of the Commission are not legally binding, the African Court may prove influential in respect to indigenous rights, including land rights claims, in developing a body of case law that can impact upon national decisions. The protocol entered into force on 25 January 2004, and the Court will begin functioning after July 2004. South Africa is one of the Commonwealth African countries that have signed the protocol and is therefore a subject of the Courts jurisdiction.
The extent to which the constitutional and legislative enactments listed above have actually been implemented and the extent to which they have proved effective relies on judicial and negotiation mechanisms. Developing case law in domestic and regional arenas and the outcomes of such negotiation mechanisms as the Waitangi Tribunal in New Zealand and the British Columbia Treaty Commission in Canada, highlight the fact that although such mechanisms are seen as positive steps in resolving the problem of indigenous land rights, they can also represent a host of further problems relating to compensation, duration of proceedings, and interpretations of provisions, to mention but a few.
The indigenous concept of land and resources, and the related questions of rights, continues to be difficult and controversial for those who come to the issue of indigenous land rights from the perspective of common law. Indigenous peoples’ conception of land is somewhat different from conservative legal and political thought and practice. The nature of indigenous land rights and resource management, present a challenge of trying to accommodate ‘indigeneity’ into current legal and political discourse.
Customary law and common law are contentious. Practical questions arise; such as can the traditional relationship of indigenous peoples to land and waters within a territory be accommodated into the existing legal mechanisms? It appears that this unique conceptualisation of land and resources is not adequately encompassed by current legal concepts of ‘ownership’ and ‘rights’. Therefore the right to land, usually protected in international and national laws under the right to individual property, assumes a completely different consideration when it comes to indigenous peoples.
The issue of indigenous land rights arise in many of the 53 member states of the Commonwealth, yet current research, especially in the field of law, tends to concentrate on the legal aspects of the problem being faced in Australia, Canada and New Zealand. A review of the literature reveals a proliferation of comparative studies that reflect this trend.[12] The Commonwealth presents a unique opportunity for research over a wider cross-reference of countries that are domestically grappling with the issue of indigenous land rights. Such research is important for Commonwealth countries to identify and facilitate exchange of cases of best practice in relation to indigenous land rights. Here lies an opportunity to promote the professional and practical cooperation within the field of law through the establishment of a network of individuals and organisations working in the field of land rights. The Commonwealth Lawyers Association in partnership with the Commonwealth Policy Studies Unit proposes to pursue these opportunities in the Indigenous Land Rights and Resource Management in the Commonwealth Project.
Stepping outside the legal framework, it is equally important to note 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. Resource management offers an alternative strategy to defend traditional lands and promote sustainable use of resources. However without rights of access or ownership of traditional homelands, indigenous people will not be able to develop and implement their own community-driven development schemes or maintain control over their own development. It is in this reality that the consideration of indigenous land rights and resource management are interrelated.
This paper highlights the importance for the Commonwealth to have a policy on indigenous land rights and resource management. Currently this issue is not being addressed at the Commonwealth level. Currently there is an absence of any network of indigenous peoples, lawyers and academics and therefore an absence of an avenue for information sharing and exchange of best practice in land rights and resource management on a pan-Commonwealth basis. There is no identification of best Commonwealth practice in relation to land rights and resource management for the purpose of providing a much-needed resource for the Commonwealth and a crucial advocacy tool to be used by lawyers, NGOs and Indigenous Peoples’ Organisations alike.
The law and political will – in terms of policy, power and participation – are the principal strategies in addressing indigenous land rights and resource management. These principal strategies are enshrined in the proposed Indigenous Land Rights and Resource Management in the Commonwealth Project. The Commonwealth Lawyers Association has the potential to fulfil the legal aspect on indigenous land rights of the project. The Commonwealth Policy Studies Unit brings the complimentary dimension of engaging in indigenous rights and resource management with a research/advocacy strategy. In partnership it is hoped that these two organisations can encourage the Commonwealth to make a commitment to addressing the needs of its approximately 150 million indigenous peoples.
...
[1] Mrs Erica-Irene Daes, Indigenous Peoples and their Relationship to Land, Final paper prepared for the UN Sub-Commission on the Promotion and Protection of Human Rights (E/CN.4/Sub.2/2001/21, 11 June 2001) [124].
[2] Ibid.
[3] The full text of the 1979 Commonwealth Lusaka Declaration is available online at <http://www.thecommonwealth.org/whoweare/declarations/lusaka.html> .
[4] The Kingstown Declaration on Land and Development, Annex C to the Communiqué, reads:
They [Commonwealth Law Ministers] conclude that the law must ensure that lawful access to land is promoted and protected and at the same time recognised the very important role to be played in many Commonwealth countries by systems of customary and community land use and ownership laws. Law Ministers recognise the need in some countries to address appropriately, and within the framework of the law, the concerns of those communities and groups who have been and remain disposed of their land and they acknowledged the need in various member countries to reconcile common law concepts of land ownership with the customary law concepts of the sharing of the collective benefits of land.
[5] For a comprehensive review of the socio-economic status of Indigenous Peoples in the Commonwealth see Richard Bourne, ‘Invisible Lives’ (May 2003), available online at <http://www.cpsu.org.uk> . More information regarding the Indigenous rights in the Commonwealth Project (2001–2004) is available online at
<http://www.cpsu.org.uk/projects/indigenous/indigenous.htm> .
[6] Albert Barume, ‘Constitutional Protection and Aboriginal Title in Commonwealth African Countries’, Paper presented at the Indigenous rights in the Commonwealth Project Africa Regional Expert meeting, 16–18 October 2002. Available online at
<http://www.cpsu.org.uk/projects/CAPE_P2.HTM> .
[7] See ‘Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia’, (19/04/2000, CERD/C/304/Add.101, 19 April 2000).
[8] R Odgaard (2002) ‘Scrambling for Land in Tanzania: Processes of Formalisation and Legitimisation of Land Rights’, 14(2) The European Journal of Development Research 71.
[9] [1992] HCA 23; (1992) 175 CLR 1.
[10] Constitutional Court of South Africa, Case No CCT19/03, 14 October 2003.
[11] The Bakweri Land Claims Committee (BLCC) vs The Republic of Cameroon (Case No 260/2002), African Commission on Human and Peoples Rights.
[12] Paul Havemann, Indigenous Peoples’ Rights in Australia, Canada and New Zealand (Oxford University Press 1999).
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