Power and the Recognition of Indigenous Land Rights

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Abstract:

One of the direct, and intended, consequences of international colonialism was the dispossession of indigenous peoples around the world from the vast majority of their traditional lands. Whether effected through military force, political negotiation (treaty-making) or through the legal and economic rights granted to settlers and settler corporations, the results across the world have been strikingly similar: disconnecting indigenous peoples from their traditional relationships with the land and limiting their access to the resources on which their economies were once based. In the past 50 years, however, a new international consciousness has emerged concerning the plight of indigenous peoples. In many cases countries have come to grips with the realization that the methods used to dispossess indigenous peoples did not comply with domestic legal norms, much less broader notions of equality among peoples and respect for cultural difference. Among the first nations to develop formal processes aimed at offering redress for takings of indigenous lands were the United States, which established an Indian claims commission in 1946, Canada, which created an Office of Native Claims in 1974 and New Zealand, which passed legislation in 1975 to review alleged state breaches of the Treaty of Waitangi.

A small number of states are currently implementing formal processes to address indigenous land rights claims. In assessing the effectiveness of these processes in reversing the most damaging results of colonialism, one might look to a variety of criteria. The remedies available to indigenous peoples under each process, the efficiency of the process in resolving disputes, the extent to which concepts of fairness play a role in determining outcomes, the degree to which each process departs from colonially imposed norms, and the amount of resources actually transferred back to indigenous peoples under the process – all of these are important considerations that might be used to assess the quality of justice delivered by domestic indigenous rights processes. Existing statesponsored land rights processes might also be measured against the consensus ideals reflected by the 2007 United Nations Declaration on the Rights of Indigenous Peoples, a non-binding document endorsed by all but three state members of the United Nations. Article 27 of the Declaration provides as follows:

“States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources which they have traditionally owned or otherwise occupied or used…” (United Nations Declaration on the Rights of Indigenous Peoples, 2007) [emphasis added]

Document Type: Research Article

DOI: http://dx.doi.org/10.5848/CSP.1786.00008

Publication date: January 1, 2010

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  • Democracy, Ecological Integrity and International Law
    Democracy, Ecological Integrity and International Law is the latest product of research by the Global Ecological Integrity Group (www.globalecointegrity.net), an organisation that has been meeting annually since 1992 to discuss scientific, philosophical, political and legal aspects of ecological integrity. This collection examines various aspects of governance from the standpoint of integrity: from democracy, to forms of Native governance, from globalization and neocolonialism to specific human rights to food, water and climate.
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