Aboriginal Law Bulletin
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by Eric Lucas
It seems increasingly likely that a new international charter stating the rights of indigenous people will be drafted and promulgated in the course of the next decade. As yet only preliminary steps have been taken, but they are clearlygathering momentum.
For some years the rights of indigenous people have had a prominent place in the agenda of international bodies concerned with human rights; and for the last three years an annual presesslonal working group of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities has met to hear the views of indigenous people. One of its tasks has always been 'the evolution of standardsconcerning the rights of indigenous populations', but now this (question) is to be emphasised, for in August 1984 the Sub-Commission requested its Working Group 'henceforth to focus its attention on the preparation of standards on the rights of indigenous populations and to relate its consideration of developments affecting the rights of indigenous populations to the process of preparing intemational standards thereon'.
A new charter will be expected to deal with a wide range of issues, such as the right to life, to land, to self-determination and to protection of the group's culture. It is a vast canvas. This paperseeksto cover onlyasmall portion of it, by reviewing some documents important for the drafting of provisions concerning land rights.
Apart from reasons of space, this limited discussion isjustified by the author's belief that the process of evolving standards will bear most fruit if topics are considered seriatim; and that once standards on a topic have been developed, they should be promulgated. If we await the drafting of a final and comprehensive ch arter, t it e re is a risk that we will wait in vain.
Much of the paper is concerned with existing guarantees of land rights. It is true that indigenous people seek more than these offer, but it will nevertheless be important in negotiating the terms of any declaration on land rights to demonstrate that much of what indigenous people claim is promised to them under present guarantees. For instance although the collective right they assert to their land differs from well-established individual rights in respect of property, still it maybe said that at least part of their claims have thereby beenconceded.ln addition there are standards developed in the past by the international Labour Organisation on behalf of indigenous people. Although these are marred by the assumption that they ought to assimilate, and fall short of what is sought, nevertheless they constitute a fairly full guarantee of land rights, to which 26 countries have already acceded.
The starting point in the task of elaborating the land rights of indigenous people is bound to be the Study of the Problem of Discrimination against Indigenous Populations undertaken by Mr Jose R. Martinez Cobo. This substantial report was commissioned in 1971, and the final parts submitted to the Sub-Commission at its thirty-seventh session in August 1984, whereupon the expert members of the SubCommission affirmed by resolution that it would be of 'definitive usefulness' for bodies concerned with the rights of indigenous populations 'and, in particular, for ihe future work on this question of the Sub-C ommission and its Working Group on Indigenous Populations'.
What is more, indigenous groups apparently share this view. The Working Group reported to the Sub-Commission that several of those who appeared before it 'stressed the importance of the report of Mr Martinez-Cobo - especiallyof his conclusions and recommendations - for the standard-setting activity of the Working Group'.
Onlybrief excerptsfrom theReport's recommendations on land rights can be given here. The full text can be found in Chapter XVII - Land (E/CN 4/Sub 2/1983/21/Add 4) and in Chapter XXI - Conclusions, Proposals and Recommendations (E/CN4/Sub 2/1983/21/Add 8).
The Special Rapporteur's key conclusions are:
511 it must be recognised that indigenous peoples have a natural and inalienable right to retain the territories they possess, to call for the return of land of which they have been deprived and to be free to decide as to their use and development.
512 Genuine guarantees should be provided and full effect given to the right of indigenous populations to the land which they and their ancestors have worked since time immemorial and to the resources which such land contains, as well as to traditional forms of land tenure and resource exploitation.
514 Recognition must be given to the right of all indigenous nations or peoples, as a minimum,to the return and control of sufficient and suitable land to enable them to live an economically viable existence in accordancewith their own customs and traditions, and to develop fully at their own pace ...
516 Millenary or immemorial possession and economic occupation should suffice to establish indigenous title to land ...
519 ... Land occupied and controlled by indigenous populations should be presumed to be indigenous land. In case of doubt or dispute the onus pobandi of the ownership of land should fall ... on the non-indigenous populations who claim to have acquired a right to part of the land.
520 All indigenous reserved areas should be immediately handed over to the respective indigenous groups ...
521 Public land which is sacred or of religious significance to the indigenous populations should be attributed to them in perpetuity.
524 ... No intermediary institution of any kind should be created or appointed to hold the lands of indigenous peoples on their behalf.
526 A protective regime should cover indigenous land ... This regime should at least include restrictions on alienation, encumbrance, attachment and proscription ...
528 All illegal acquisition of indigenous land should be null and void ab initio and no rights should be vested in subsequent purchasers or acquirers of the land ...
532 lndigenous populations should be compensated for the loss of all ... lands that have been or may be taken.
543 ... the resources of the subsoil of indigenous land also must be regarded as the exclusive property of indigenous communities. Where this is rendered impossible by the fact that the deposits in the subsoil are the preserve of the State, the State must ... allow full participation by indigenous communities in respect of:-the granting of exploration and exploitation licences;
-the profits generated by such operations, and
-procedures for determining damage caused and compensation payable.
It will be apparent that the recommendations have important implications for the claim of indigenous people that they have rights:
1. Over land which they occupy of use, irrespective of whether according to their own customs or an imposed law, they'own that land;
2. Over minerals and other resources on their land;
3. To the return of land of which they or their forbears have been dispossessed, and to compensation. (This raises the question of the rights of those currently in possession of the land);
4. To effective protection against future dispossession;
5. To manage their land themselves, free of interference.
On some of these matters the recommendations are inconsistent, ambiguous or silent. However it is probably fruitless to attempt to discover the Special Rapporteur's'true' intentions in such cases. He was not attempting to draft a binding declaration of the rights of indigenous peoples, but to lay the foundations for that task. He no doubt intended that his general statements would be clarified, and his omissions made good, in the course of drafting. But if the recommendations cannot be immediately transposed into a binding declaration, they nevertheless provide an ample framework for assessing the shortcomings of existing guarantees, a question to which I now turn.
Article 17 of the Universal Declaration provides that 'Everyone has the right to own property alone as well as in association with others' and that ‘No-one shall be arbitrarily deprived of his property’.
The author's views on the interpretation of this Article have already been stated, in an intervention on behalf of the International Commission of Jurists, before the Working Group on Indigenous Populations:
The ICJ believes that this is a far wider guarantee of land rights than is commonly recognised.
In the first place, it recognises common as well as individual rights of property, and calls for both to be respected.
It is commonplace that fundamental guarantees such as this do not depend upon the idiosyncrasies of municipal law. It would be quite inappropriate therefore if Article 17 were so interpreted that a State could escape its obligations simply because under the law of that State, its indigenous inhabitants had never had property in their land.
Article 17 imposes a universal standard. If an indigenous person or group ever enjoyed property rights in land, and was arbitrarily deprived of them, their rights have been infringed. They will have had property in their land if, before the State to which they are now subject imposed its laws, certain conditions were met.
If a previous State, which would include an indigenous State, had recognised their property in land, they cannot be arbitrarily deprived of it. If there was no such central authority to determine the validity of their claims, it does not follow that they did not have rights of property. In such societies groups often reached mutually accepted views as to hunting or cultivation rights, and other matters of concern with respect to land. Provided the result was to exclude others from these rights, they constituted a form of property. The Universal Declaration of Human Rights was not meant to enshrine narrow values, fixed in a particular culture. It is not necessary to point to title deeds, if there were rights over land recognised and enforced by the communities which inhabited those lands.
Even so, it maybe that those indigenous people who never faced competition for their land will find it difficult to qualify for protection under Article 17, for they might never have found it necessary to develop any concept of property in land. This is a gap in protection which the ICJ believes the Working Group should attempt to fill, for surely the right of such people to retain for their own use some part at least of the lands they occupied before newsettlers arrived should be recognised.
The scope ofArticle 17is also qualified in that it protects only against arbitrary deprivation of property. It is not a guarantee against taxation, or nationalisation, or the seizure of land. Nevertheless, it requires more than that the seizure of an indigenous people's land was lawful, according to the municipal law.
The Concise Oxford Dictionary defines 'arbitrary' as ‘capricious, unrestrained, despotic’. Arbitrary deprivation of property implies that the deprivation is without reasonable cause orjustification and that it is imposed by the mere exercise of power without giving those affected the right to be heard and to have their interests considered. In a word, it is deprivation which, in its motivation and its manner, is unjust.
It is unnecessary at this point to elaborate these standards. Suffice to say, if a State made a treaty with an indigenous group, then unilateraly revoked the treaty, there would be a strong case for saying that this was arbitrary, and a breach of Article 17. Similarly, if a State imposed a law which deemed a territory to be 'waste' or unsettled, regardless of the fact that there were indigenous inhabitants, and for this 'reason' claimed that traditional forms of property in land should not be enforced, it would seem to have behaved arbitrarily.
It must be acknowledged that the abuses of Article l7 which indigenous peoples have suffered will, in many cases, have happened long ago. If the damage is irreparable, then, at the very least, the peoples concerned have a moral claim to compensation. And where indigenous people have been arbitrarily deprived of land, and it is now vested in a State, the State in many cases should recognise the right of that people to its return. It should be noted that in many legal systems, lapse of time does not affect the claims of the rightful owner of property. This is so irrespective of the innocence of a person who has purchased it in good faith. If such an approach is implied by Article 17, there are many indigenous peoples who could benefit.
In summary, many of the seizures of land from indigenous peoples have been in breach of the principle in Article 17 of the Universal Declaration of Human Rights. It follows that, even if a State has not acceded to the ILO Conventions guaranteeing land rights, it may be in breach of its international obligations if it does not return land which was arbitrarily seized.
The Indigenous and Tribal Populations Convention (No. 107), which was adopted by the Conferenceof the International Labour Organisation in 1957, provides:
Article 11
The right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognised.
Article 12
1. The populations concerned shall not be removed without their free consent from their habitual territories except in accordance with national laws and regulations for reasons relating to national security, or in the interest of national economic development or of the health of the said populations.
2. When in such cases removal of these populations is necessaryas an exceptional measure, they shall be provided with lands of quality at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. In cases where chances of alternative employment exist and where the populations concerned prefer to have compensation in money or in kind, they shall be so compensated under appropriate guarantees.
3. Personsthus removed shall befullycompensated for any resulting loss or injury.
Article 13
1. Procedures for the transmission of rights of ownership and use of land which are established by the customs of the populations concerned shall be respected, within the framework of national laws and regulations, in so far as they satisfy the needs of these populations and do not hinder their economic and social development.
2. Arrangements shall be made to prevent personswho are not members of the populations concerned from taking advantage of these customs or of lack of understanding of the laws on the part of the members of these populations to secure the ownership or use of the lands belonging to such members.
Article 14
National agrarian programs shall secure to the populationsconcerned treatment equivalent to that accorded to other sections of the national community with regard to:
(a) the provision of more land for these populations when they have not the area necessary for providing the essentials of a normal existence, or for any possible increase in their numbers;
(b) the provision of the means required to promote the development of the lands which these populations already possess.
In addition the ILO adopted a Recommendation (No. 104) which supplemented the Convention in some important respects:
3. (1) The populations concerned should be assured of a land reserve adequate for the needs of shifting cultivation so long as no better system of cultivation can be introduced ...
(2) Pending the attainment of the objectives of a settlement policy for semi-nomadic groups, zones should be established within which the livestock of such groups can graze without hindrance.
4. Members of the populations concerned should receive the same treatment as other members of the national population in relation to the ownership of underground wealth or to preference rights in the development of such wealth.
5. (1) Save in exceptional circumstances defined by lawthedirect or indirect lease of lands owned by members of the populations concerned to personsor bodies not belonging to these populations should be restricted.
(2) in cases in which such lease is allowed, arrangements should be made to ensure that the owners will be paid equitable rents. Rents paid in respect of collectively owned land should be used, under appropriate regulations, for the benefit of the group which owns it.
6. The mortgaging of land owned by members of the populations concerned to a person or body not belonging to these populations should be restricted.
It will be noted that the effect of Article 11 is to recognise that if land has been traditionally occupied, that gives rise to a right of ownership. Under this principle, it is unnecessary for indigenous people to establish that they had 'owned' their land, according to their own customs and lore, in order to secure title to it under the legal regime established by later settlers.
Article 12 limits the grounds upon which indigenous people can be removed, and by implication similarly restricts the grounds upon which their land can be seized. But the restrictions are loosely drafted. Although seizures must be in accordance with law, it is not specifically laid down that only the government can undertake compulsory acquisition. Moreover, it is surely not enough to require 'reasons relating to national security, etc.' The grounds for acquisition and removal should be specified, and must be such as to outweigh the indigenous people's strong claim to their land, and the misery which will follow its seizure. Although Article 12(2) implies that removal should take place only where it is necessary (as distinct from convenient) and as an exceptional measure, in any future draft such restrictions should be made explicit conditions.
Another noteworthy feature of Article 12 is that although it provides for full compensation when land is seized, it does not deal with the difficult question of what compensation should be paid,and whether restitution of land should be an available remedy in cases where the seizure took place before the Convention entered into force.
Article 13 is ambiguous on a crucial issue. One of the striking features of statements by indigenous people is the unanimity and vehemence with which they claim the right to decide for themselves what is good for them. In other words, they claim the right to manage their own affairs. If Article 13 implies that national governments are to determine which customs are to be respected, it offends against this principle. On the other hand, provided that indigenous people decide this for themselves, they should be perfectly free to discard obsolete customs governing land use and succession, in accordance with Article 13.
Of course this principle of self-management sits somewhat uneasily with proposals that indigenous people should be protected against exploitation by restrictions on the right to sell, lease, mortgage or licence the use of their land and its resources. But they can be reconciled provided the restrictions represent the desire of indigenous people themselves.
Article 14 represents a different approach from that stressed so far. Instead of protecting indigenous people from seizure of the land which they currently occupy, and fixing reparations for that seized in the past, it asserts their right to enough land to provide for their needs, and their descendants, whatever the mode of life they choose to adopt. It must be said that this approach has disadvantages. Like many such economic rights, the Article is vague, and is better understood as an aspiration, than as a present guarantee. What is more, it would not confer on indigenous people any priority over other members of the community, whereas much of the force of their claim to land derives from the fact that they did come first, and were violently dispossessed of land which was theirs by rights.
It will be apparent that between them Article 17 of the Universal Declaration of Human Rights and the Indigenous and Tribal Populations Convention, establish many of the principles which indigenous people would like to see included in a charter of land rights. In particular they give clear support to the principles of recognition and protection of existing property, and restitution and compensation for past abuses. Perhaps these rights are acknowledged because they spring from universal rights of property.
What is missing is recognition of indigenous peoples' claims to special treatment. For instance clause 4 of ILO Recommendation No. 104 proposes equal treatment in respect of the exploitation of mineral wealth. No doubt this is still necessary as a minimum guarantee, but nowadays indigenous people claim not equal treatment, but different treatment. To make good this claim, they need to ensure that in any negotiations, the foundation upon which it rests is clearly understood.
Nor is the claim to special rights in respect of mining the only such example. We live in an age where property rights are increasingly trammelled by restrictions imposed in the public interest. There is State control of many aspects of land use and development, from which indigenous people will often seek to be exempt.
The foundation of such an exemption, and of the claim of indigenous people that their rights over land should be different from those of the rest of the community, is the principle of self-management. This in turn has a number of justifications.
A principal one, in the eyes of many indigenous people, is that they are separate nations. They have been conquered and colonised, but they retain their right to self-determination. It hardly seems necessary to add that the States which govern them will resist the claim to self-determination, out of fear that it will lead to their disintegration. But much of what is meant be self-determination may be conceded, if it is sought under the principle of self-management, which carries less dangerous implications. The State cannot expect indigenous people to abandon their conviction that they are a separate people, but it can minister to their sense of injustice, and quieten their protests, if it concedes the right to manage their own affairs.
It has been a persistent theme in human thought that a free and independent people, who make the decisions which affect their future, are likely both to make better decisions, and to be happier withal. This is the principle which underlies self-determination, but it also supports self-management. If self-determination cannot,or will not, be conceded, that is no reason for denying indigenous people freedom on their own land. And the argument of principle is strongly supported by the consideration that the distinct culture and way of life of indigenous people is threatened by events beyond their control. Only by restoring to them a measure of control can we help preserve their separate identity.
There are two main arguments against this. One is the paternalistic proposition that indigenous people are uncivilised and need help. There are all sortsof difficulties with this view, but in any event the plain and unmistakeable fact is that the 'help' has not worked. In any event one would have thought that only by exercising personal responsibility, in other words by self-management, could indigenous people change in the fashion paternalists desire.
The other argument is that it is inequitable to accord different rights to indigenous people. It seems useless to deny that there is an element of discrimination involved. But we are used to the idea that special help should be given to the disadvantaged. Self-management for indigenous people can be justified on the grounds that it is the form of positive discrimination which is most likely to have the desired result, or because the discrimination is based on membership of a group which has the right to maintain a separate culture and way of life.
Finally one might comment, somewhat cynically, that in addition to the force of these arguments of principle, national governments should be swayed by the fact that to concede self-management will absolve them of some responsibility. At present they are blamed for the plight of indigenous people. But if they grant land rights and self-management, they will be able to defend themselves by saying that they have given indigenous people what they wanted. After that, any mistakes the people make must rest on their own heads.
It will be apparent that, in the author's view, three principles need to be accepted in negotiations on land rights. Two of these guarantees against dispossession of land currently occupied, and restitution and compensation for past seizures are already supported by international law. The third, the principle of self-management, must be maintained by weight of argument. If indigenous people can succeed in this, they will have an advantage in negotiations, for the other side will be in the difficult position of having to propose specific exceptions to the principles put forward.
Article reproduced with permission from The Review - International Commission of Jurists, No. 33, December 1984.
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