If land rights, land tenure rights, and natural resource access rights of indigenous peoples are not protected or recognized by international and domestic laws, the culture and livelihoods of indigenous peoples and pastoralists are likely to disappear. The purpose of this section of ILC's website is to provide information on domestic and international jurisprudence that protect the land rights and environmental rights of indigenous peoples.
International instruments concerning the rights of indigenous peoples have influenced the work of international human right's bodies (e.g. UN Human Rights Commission) and other international and regional institutions (e.g. Inter-American Court of Human Rights). These courts and committees have been increasingly involved in reviewing complaints by indigenous peoples over their rights to lands and resources. These courts have applied indigenous rights articulated in environmental and humanitarian international covenants to domestic, regional, and international judicial decisions. As a result, as domestic legislation and judicial decisions on indigenous rights emerge, they may come to represent customary international law. Under regional human right's systems (such as the Inter-American Court system), decisions which recognize and protect indigenous rights under international law set legal precedents within the regional system.
Other judicial decisions in domestic courts can provide indigenous groups with valuable information on judicial interpretations of domestic and international laws. The short annotations below should be useful for indigenous peoples and their advocates in pursuing and negotiating their rights. Rights to land and rights of access to land and its resources are necessary conditions for sustainable development, environmental integrity and cultural survival.
In this advisory and precedent setting opinion, the ICJ held that the nomadic peoples were entitled to exercise their right to self-determination based on their coherence as a people. In addition, the ICJ determined that the territories inhabited by the nomadic peoples are not terra nullius and are not open to state acquisition. This case brought an end to the colonial concept of terra nullius -rejecting the invocation of terra nullius to acquire original title through occupation of territories inhabited by peoples with a distinct organization.
Ominayak, Chief of Lubicon Lake Band v. Canadas
1984
- Court:
UN Human Rights Committee
- Citation:
UN Doc. Supp. No. 40 (A/45/40)
First indigenous land rights claim brought under ICCPR Article 27. Article 27 construed to extend to economic and social activities upon which the Lubicon Lake Cree depended. Thus the timber expropriation taking place on Cree lands was deemed a threat to the livelihoods of indigenous peoples. HRC found that Canada had violated its obligations under Art. 27 when it allowed the provincial government to grant oil and gas exploration leases. HRC found that the Cree's survival as a distinct community was tied to its subsistence and dependence on the land and its resources.
Lansman et al. v. Finland 1990 -
Court:
UN Human Rights Committee
- Citation:
UN Doc. CCPR/C/52/D/511/1992 (1994)
In its decision, HRC recalled that economic activities fall within the ambit of ICCPR Article 27 if the activity is an essential element of cultural identity. In this case, the impact of mining on the reindeer herd was found to be so limited that it did not deny the Sámi of the right to enjoy his culture and is thus not a violation of Art. 27. This case links land and natural resources to indigenous peoples' cultures, thereby offering the possibility of protecting land rights through cultural prerogatives. Lastly, HRC ruling shows that only a "substantial impact on indigenous communities constitutes a violation of Art. 27. This case is significant in that it establishes the right of minorities to protect their economic livelihoods through culture
Mabo v. Queensland
1992 - Court:
Australian High Court
-
Citation:
175 C.L.R. 1
A landmark Australian court case voiding the legal doctrine of terra nullius and recognizing a form of native title. The judgment also recognized that native title may survive in areas where indigenous people had a traditional connection or occupation of the land. Court recognizes that an aboriginal tribe holds proprietary interests in its environmental resources.
Delgamuukw v. British Columbia
1997 - Court:
Supreme Court of Canada
-
Citation:
[1997] 3 S.C.R. 1010
In this landmark decision on the nature and scope of aboriginal title, the court held that absent a valid extinguishment, aboriginal people have, sui generis , aboriginal title to the land they exclusively occupied prior to crown sovereignty. This right is protected by the Constitution. The court recognizes a special fiduciary duty between the Crown and the aboriginal peoples. The government has the duty to consult in good faith with aboriginal peoples with the intention of addressing the concerns of the peoples whose lands are at issue. .
Awas Tingni v. Nicaragua
2001 - Court: Inter-American Court of Human Rights - Citation: IACHR (Ser. C) No. 79 (2001)
This case was brought before the Inter-American Court of Human Rights and was the first question brought to the court concerning indigenous peoples' property rights. Property rights are traditionally interpreted in individual terms. The Tingni claim cited the American Convention on Human Rights, including the right to property. The court recognized the tradition of communal land ownership amongst indigenous groups and the connection between indigenous groups and the land they occupy. The court held that Nicaragua must delimit, demarcate and title the lands belonging to the Tingni community. Case of judicial triumph for indigenous people where the court recognized environmental resources as a matter of self-determination. The decision validates the international effort to promulgate declarations, etc. that encourage nations to honour the environmental rights of indigenous peoples. This was the first international tribunal to recognize the communal property rights of indigenous peoples and to mandate a state to protect those rights. A precedent-setting decision within the Inter-American human rights system.
San Bushmen v. Botswana
1992
2006 - Court: Botswana High Court
The court reviewed whether the semi-nomadic Sam people had the right to live on and continue using traditional hunting grounds in the Central Kalahari Game Reserve. In a landmark judgment, the court held that the Sam had been illegally removed from the Reserve and that they had the right to return. This is a precedent setting case linking land to cultural sustainability.
Orispin Loaiza Vera et al. v. Gerente General del INstiuto de Reforma Agraria, INCORA
1993 - Court:
Corte Constitucional de Colombia
- Citation:
Sentencia No. T-188 de Mayo 12 de 1993
The Constitutional Court recognized territory as a necessary condition for cultural integrity, which is protected by the Article 330 of the Constitution. The constitutional recognition of indigenous land imposes a legal obligation on the state to demarcate and protect the lands of indigenous communities.
Adong bin Kuwau v. State of Johor
1998 - Court:
Malaysia Court of Appeals
- Citation:
1 Malayan L.J. 418-36 (1997)
Court upheld a judgment that awarded compensation for the loss of more than 53,000 acres of ancestral lands to the Jakun tribe. Citing the 1974 Aboriginal Peoples Act, the court held that certain lands are reserved for aboriginal people, ruling that the Jakun tribe had the right to continue to live on their lands. Article 13 of the Federal Constitution protects proprietary rights and requires payment of adequate compensation for any taking of property.
General Comment No. 23: Interpreting ICCPR: The Rights of Minorities (art. 27)
Court:
UN Human Rights Committee
- Citation:UN Doc. CCPR/C/21/Rev.1/ Add. 5 at para. 3.2
The cultural rights of indigenous peoples are closely associated with territory and resource use. States have the positive legal obligation to protect indigenous integrity by protecting their relationship to land.
Kitok v. Sweden
1985 - Court:
Human Rights Committee
- Citation:
Communication No. 197/1985
An international analysis of a claim brought by a member of the Sami community who claimed that Swedish legislation denied him the right to enjoy the culture of the Sami by prohibiting him to engage in reindeer hunting. Kitok claimed that Swedish legislation violated Article 27 of the ICCPR and denied him the right to enjoy his own culture. The Committee found that Article 27 protects the right to culture, interpreting the right to culture as the right to engage in reindeer husbandry. However, the Committee found that no violation of Art. 27 had occurred as the reason for the legislation was to preserve the Sami community.
Maya Villages of Santa Cruz and Conejo v. Attorney General of Belize and Minister of Natural Resources and Environment
18 October 2007
- Court:
Supreme Court of Belize
- Citation:
Claim #171/172 (2007)
A landmark supreme court ruling in which the court affirmed the rights of the Maya to their traditional lands and resources. This is the first domestic case to cite UNDRIP
.
IAlexor Limited v. the Richtersveld Community October 2003 - Court: Constitutional Court of South Africa
Claim brought to Land Claims Court under the Restitution of Land Rights Act 1994 (§2(1)) arguing that indigenous land rights existed under customary law. Land Claims Court dismisses the claim, but the Supreme Court of Appeals upholds the appeal, citing Mabo v. Queensland (No. 2) that a change in sovereignty does not extinguish customary property rights. The final decision by the Constitutional Court upheld the Court of Appeals' decision, finding that the Richtersveld community's rights to exclusive beneficial occupation and use of their land must be reinstated. Court recognizes common law ownership as a customary law interest.
