EXPERT SEMINAR ON INDIGENOUS PEOPLES’ PERMANENT SOVEREIGNTY
OVER NATURAL RESOURCES AND ON THEIR RELATIONSHIP TO LAND
25, 26 and 27 January 2006
Palais des Nations
Indigenous peoples’ ownership, use and responsibility for lands and resources
1Document prepared by Andrew Erueti*
1 Lecturer, Faculty of Law, Victoria University, New Zealand. Nga Ruahine-rangi and Ati Hau.
The views expressed in this paper do not necessarily reflect those of the OHCHR.
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The argument advanced in this paper is that states consistently use tradition and inquiries into
indigenous peoples‟ historical association with land to read down indigenous peoples‟ rights to
traditional lands. The paper then considers the utility of international human rights fora in
addressing the evidential issues raised in domestic aboriginal title determinations. This is especially important for those states that do not provide robust constitutional protections for their citizens. I focus on decisions from the Organisation of American States (OAS) human rights fora – the Inter-
American Human Rights Commission and Human Rights Court.
States determination of traditional land rights:
Let me start by explaining what I mean by traditional lands. For me, the expression, traditional land, is an easy shorthand way to describe the status of land (not state or private land) that has its origins in pre-colonial indigenous customary laws yet has not received formal recognition from the state.
The definition covers lands in many parts of the globe and in recent years states have adopted
measures to address indigenous peoples‟ claims to these lands. As is well known, the judicial
determination of land claims in the common law jurisdictions has not delivered a great deal for
indigenous peoples. Rather than give you a description of developments in each jurisdiction, I want to illustrate particular issues or themes.
First, it seems that while cultural distinctiveness and the historical fact of indigenous peoples‟ pre-
colonial political and territorial rights in lands have provided solid justifications for rights
recognition, the very same notions are manipulated by states and especially state courts to deny
claims to traditional lands or limit the nature of rights recognised. In relation to self-determination and territorial rights, indigenous peoples often say that these rights are inherent in that they have their basis in the indigenous legal systems that preceded the institutions and laws introduced by
settler societies. That is now conventional wisdom and it is a sound basis for recognising long
neglected indigenous rights to traditional lands and self-determination.
In Australia, rights to traditional lands (or native title lands) are said to have their basis in pre-colonial custom law. But the courts take the matter a step further and actually define the content and extent of native title rights by reference to these pre-colonial customs. Native title is characterised by the courts as a bundle of discrete rights and interests each of which must be supported by specific 2custom laws observed in the present and based on pre-colonial custom laws. Consequently, native
title rights and interests tend to only provide aboriginal communities with the right to engage in the type of traditional activities that were exercised in pre-colonial times.
In addition, tradition can be used by states to limit the range of rights and activities that can be carried out on traditional lands that have received official recognition. In relation to aboriginal title in Canada, for example, while the holders of that title are entitled to occupy lands exclusively, the community is not permitted to use the land in a manner that is irreconcilable with the nature of their
2 See Yorta Yorta (HC) (2003) 194 ALR 538.
- 3 - attachment to the land. To use an example of the Supreme Court‟s, aboriginal title holders cannot 3strip-mine former hunting grounds. Such an inherent limitation undermines indigenous sovereignty
and assumes that there are no internal tribal laws for regulating the use of their lands.
Secondly, there can be a tendency within states to impose western standards of proving property
rights upon indigenous peoples. For example, to ground a claim to aboriginal title in Canada,
claimants must establish evidence of exclusive occupation at sovereignty of the land claimed. The
evidential requirement of occupation of lands at sovereignty avoids an inquiry into the content of
specific indigenous customary laws (the requirement in Australia) but occupation, it must be
emphasised, is a common law standard for establishing possession, or ownership, of lands. The
common law standard is relaxed somewhat by the requirement that the inquiry into occupation be 4informed by both common law and aboriginal perspectives. But recent decisions of the Canadian Supreme Court indicate that the common law perspective is favoured and occupation must amount 5to „sufficient regular and exclusive use‟ of land. That works against tribes who, apart from core areas of repeated and intensive settlement, were adapted to partial and seasonal, rather than
exclusive and permanent, use and occupancy of extensive territories.
Thirdly, the domestic litigation of land rights always requires some degree of continuity of the right
claimed from the date of sovereignty (sometimes earlier) to the date of the claim. In Australia,
aboriginal claimants must establish a continuing connection with the land claimed through their
customary laws from the time of sovereignty. In New Zealand, under the Foreshore and Seabed Act
2004, to claim a Territorial Customary Right (a right akin to Canadian aboriginal title), iwi must
prove that the foreshore land has been continually occupied and exclusively so without a substantial 6break from the time sovereignty was asserted in 1840. That creates significant evidential obstacles for indigenous peoples, especially if indigenous peoples are required to show, as in Australia,
continuity of a connection with land through custom law.
Fourthly, indigenous peoples always struggle in domestic native title/aboriginal rights litigation, to
acquire territorial rights to traditional lands; that is, a right to occupy territorial lands to the
exclusion of other peoples. This in large part is due to the evidential standards applied by courts in
native title/aboriginal rights litigation. The absence of a territorial land base undermines efforts to
establish tribal autonomy free of interference from outsiders.
Fifthly, indigenous peoples rights to traditional lands have always (in the absence of the type of
constitutional protection afforded to aboriginal rights by the Canadian Constitution) been
characterised as fragile rights that must yield to non-indigenous rights in the event of conflict. There 7is a long history of traditional land rights not being viewed as real property rights. That approach
3 See Delgamuukw v. British Columbia  3 S.C.R. 1010. 4 See Delgamuukw v. British Columbia above. 5 See the majority judgment of McLachlin C.J in R v Marshall; R v Bernard 2005 SCC 43 paragraph 58, rejecting the more expansive approach to the question of occupation adopted by the Courts of Appeal. 6 Section 32 FSA 2004. 7 See for example, Tee-Hit-Ton v. United States 348 U.S. 272 (1955), which ruled that original Indian title was not „property‟ for the purposes of the Fith Amendment to the US Constitution and therefore could be taken without due
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continues to be applied in this modern era of land rights recognition.In Australia, where native title
is characterised as a bundle of discrete rights, each native title right is extinguished by any
conflicting non-indigenous right. Often the first and most important native title right to go is the
right to control access to or control over native title lands or as aboriginal claimants put it: the right 8to “speak for” country.
Finally, domestic native title/aboriginal rights law tends to focus on traditional tribes in the sense of
tribes with distinctive attributes and a close association with traditional lands. There is a flavour of
this in international law too. In international law, self-definition as indigenous peoples is the key
criterion but often this is qualified by certain objective criteria such as (i) collective attachment to
lands and natural resources therein and (ii) customary cultural, economic, social or political
institutions separate from those of the dominant society (see the World Bank criteria for determining
indigenous peoples). This definition risks passing over those indigenous communities who no longer
occupy their traditional lands yet plainly see themselves as indigenous. In New Zealand, we see the
marginalisation of urban indigenous groupings who self-identify as indigenous yet are denied a
meaningful share in major treaty settlements and cannot participate fully in the government
To summarise the above, while states have moved to address claims to traditional lands in this era of
rights recognition, states tend to use tradition (or customary law) and the historical inquiry raised by
land claims to deny or read down rights to traditional lands. It doesn‟t have to be this way. Custom
and tradition does not have to be read in the way adopted by the Australian courts; and occupation
does not have to read in the way adopted by the Canadian courts. There is no need for courts to
inquire into whether an indigenous group occupied traditional lands claimed at sovereignty if the
group has a historical connection to the general territory and occupies and uses their traditional lands
under their land tenure systems. When states adopt these approaches to rights recognition,
indigenous peoples will often pursue their claims in international fora (if that avenue is available to
The utility of international human rights fora in addressing the evidential issues raised in
domestic traditional land determinations:
The point I wish to make here is that international human rights fora can play an important role in
evaluating state practice and encouraging states to adopt a more open approach to the recognition of
9The Mayagna (Sumo) Awas Tingni Community Case (Awas Tingni case) and Maya Indigenous 10Communities of the Toledo District (Mayan case) decisions – decisions of the OAS Inter-
American Human Rights Court and Human Rights Commission, respectively – exemplify the utility
of international human rights fora in upholding indigenous peoples‟ land rights and illustrate
8 See Western Australia v Ward (2002) 191 ALR 1 (8 August 2002). 9 The Mayagna (Sumo) Awas Tingni Community Case  IACHR 9 (31 August 2001). 10 Maya Indigenous Communities of the Toledo District 12 October 2004 Report No 40/04.
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alternatives to the strict legal criteria that have emerged from the domestic litigation of indigenous land rights.
In each case, the indigenous communities were in occupation of traditional lands in accordance with their land tenure practices yet the land had not been officially recognised by the states and the states had granted concessions for resource exploitation over the lands. The indigenous communities sought relief through the OAS Inter-American human rights system alleging in particular violation 11 of the right to property under OAS treaties.
In each case the states argued that, while the claimants inhabited the traditional lands claimed, they were not the ancestral occupants of the lands – ie, the land claimed was not occupied by them in pre-
colonial times. For example, in relation to the Awas Tingni case, Nicaragua argued that the community was a recent migrating group, with a nomadic life-style, that had travelled to the land in question after splitting from an original community in the mid-20th century. The Awas Tingni and Mayan communities, in response to states‟ arguments, had argued that there was a clear historical continuity between them and pre-colonial peoples and that they had occupied and used the land in question, in accordance with their traditional land tenure for long duration. The fact was that due to the effects of colonization and especially the civil conflict seen in recent times, these communities could not be expected to reside within fixed ancestral territories from pre-colonial times.
The OAS Human Rights Court, in relation to the Awas Tingni case, and Human Rights Commission, in relation to the Mayan case, accepted that on the evidence, there was a communal property right to the lands inhabited by their communities. This right had its source in custom law and not the law of the state and therefore could be given recognition under international human rights law, irrespective of domestic notions or legal tests for establishing property rights. The OAS fora, having found a breach of the right to property, directed the states to demarcate and officially recognise the claimants‟ communal property rights to the lands traditionally occupied and used by them.
These OAS decisions direct states to consider present occupation and use of traditional lands as the basis for rights recognition. There was no need to consider whether the claimants occupied the lands claimed in the pre-colonial era and whether they had maintained a continuous link with the lands from that time. In addition, the demarcation of the lands occupied and used was to be carried out in accordance with the claimants‟ customary land tenure practices – that indicates clearly that
occupation is to be determined from the aboriginal perspective and not by common law standards (cf with Canadian aboriginal title law).
The inquiry embarked upon by the OAS fora is like that of an arbitral system that declares what the rights of the parties ought to be according to the justice and circumstances of the individual case. In
other words, the OAS fora are not concerned with indigenous custom law and occupation of lands in
11 The Awas Tingi and Mayan claimants argued that the right to property under relevant treaties administered by the OAS was not limited to individual ownership but could include collective ownership by tribes in accordance with tribal custom. In the Mayan case the relevant treaty was the American Declaration which contains, in Article XXIII, the right to property. In the Awas Tingni case the right to property is contained in Article XXI of the American Convention on Human Rights.
- 6 - the strict sense but with the merits of the case – it was well established that the Awas Tingni and Mayan communities had a traditional land tenure system, a historical association with the general
territory and an enduring presence on the lands. And there was recognition of the need for
indigenous peoples to move from place to place as a result of civil conflict and the effects of
The general principle in these decisions should provide direction to all states subject to indigenous
peoples claims to traditional lands. In addition, the approach of the OAS fora to these evidential
questions may serve as a guide to other human rights treaty bodies that are required to address 12similar complaints in relation to traditional lands. These decisions also illustrate the importance for indigenous peoples of international human rights treaties and especially access to the treaty bodies
through communication or early warning procedures so that may have an independent arbiter
evaluate state practice and encourage states to adopt less rigid approaches to the recognition of
traditional land rights.
In conclusion, indigenous peoples throughout the globe struggle to acquire meaningful rights in their
traditional lands. In the common law jurisdictions, over the last tend years especially, courts have
developed strict legal criteria for the determination of land rights. Tradition and the historical
inquiry into association with traditional lands have been interpreted in a rigid manner. The OAS
decisions illustrate two points: the utility of international human rights fora in evaluating state
practice and encouraging states to adopt a commonsense approach to human and indigenous rights
recognition; and the importance of providing access by indigenous peoples to international human
rights fora. While this paper has focused on indigenous peoples rights to traditional lands, the very
same problems will no doubt arise in relation to other indigenous rights, especially the right to self-
12 For example, in its recent decision on the NZ FSA, the ICERD Committee, while critical of the FSA, did not comment
on the evidential standards imposed by that legislation – essentially an inelegant amalgam of the standards applied in Australian and Canadian native title/aboriginal rights law – even though a large part of the tribal submissions focussed on this point. However, through the Committee‟s follow-up procedure and the reporting process there remains some potential for ICERD to issue statements that address more comprehensively, the evidential standards used in the FSA,
and direct New Zealand to adopt a more equitable approach to land rights recognition.