Indigenous land rights

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Category

Indigenous land rights are the

Aboriginal Australian peoples, the land is an essential part of their spirituality
and belief systems.

Indigenous

customary tenure persist after the assumption of sovereignty under settler colonialism. The United Nations Declaration on the Rights of Indigenous Peoples, passed by the UN General Assembly in 2007, illustrates the importance of land for Indigenous peoples and offers benchmark standards on the land rights of indigenous people. Statutory recognition and protection of Indigenous and community land rights continues to be a major challenge, with the gap between formally recognised and customarily held and managed land is a significant source of underdevelopment, conflict, and environmental degradation.[2]

International law

The foundational documents for Indigenous land rights in

Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the American Convention on Human Rights, and the American Declaration on the Rights of Indigenous Peoples
.

China

Main articles: East Turkestan independence movement and Tibetan independence movement

Arab Region

Main articles: Kurdish nationalism, Palestinian right of return, and Zionism

Common law

Main article: Aboriginal title

Aboriginal title, also known as native title (Australia), customary title (New Zealand), original Indian title (US), is the common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty. Indigenous peoples may also have certain rights on Crown land in many jurisdictions.

Australia

Main articles: Indigenous land rights in Australia and Native title in Australia

Indigenous land rights have historically been undermined by a variety of doctrines such as terra nullius.[3] which is a Latin term meaning "land belonging to no one"[4] In 1971, a group of Meriam people in Australia issued a legal claim for their ownership of their island of Mer in the Torres Strait.[5] In their legal claim they issued that their land is inherently and exclusively owned, lived and governed by Meriam people, where they historically managed its political and social issues.[6] After years of the case being heard by the legal courts, and after the death of one of the plaintiffs (Eddie Mabo), the High Court's judgement issued a recognition of the native's ownership to land and the denial of the myth of the terra nullius.[6]

Canada

Main articles:
Aboriginal title in Canada and Indigenous land claims in Canada

As Canada's constitution, as belonging to Canada and not Great Britain, is relatively new, the

Tsilhqot'in Nation v. British Columbia (2014).[9] In this case, the Supreme Court of Canada confirmed the aboriginal title of the Tsilhqot'in Nation.[10]

Japan

Ever since the Ainu were recognised as the indigenous people of Japan in 2019, the Ainu have been able to apply for special land rights if requested. The Ainu Promotion Act 2019 specifically lists special rights over "national parks, rivers and trademarks to preserve Ainu culture".[11]

Latin America

As the political systems of some

Convention 169; the convention concerning Indigenous and Tribal Peoples in Independent Countries, which updates the ILO 107 of 1957. In this convention was also the recognition of the very close and important relationship between land and identity, or cultural identity very important. Today, this convention has been ratified by 15 Latin American and Caribbean countries. Even in countries where it has been ratified, limited implementation has led to conflicts over indigenous land rights such as the Escobal mine protests in Guatemala,[12] protection of Yasuní Oil in Ecuador,[13] and the conflict between the Saramaka and Suriname[14]
—to name a few.

New Zealand

Main articles:
Aboriginal title in New Zealand and Māori protest movement

Indigenous land rights were recognised in the 1840

Native Land Court was established after the Treaty as a governmental body that was to provide a way in which lands in Māori customary ownership could be converted to Crown-granted freeholds,[17] a direct breach to the Treaty. Unrest between the Māori and the Crown continued into the 19th and 20th centuries, including a series of wars detailed in a book called The New Zealand Wars
.

While the Treaty itself has often been ignored according to historians,

native title
. Controversies over Indigenous land rights have tended to revolve around the means by which Māori lost ownership, rather than whether they had ownership in the first place.   

South Africa

South Africa has had a particularly publicized relationship between its settler community and the indigenous population. Beginning with the Native Land Act of 1913 (also known as the Banta Land Act or Black Land Act), the country was essentially divided along racial lines. The majority of the land was reserved for the white population although the black population, the Natives, made a majority of the county's overall population.[19] The black South Africans were confined to reserves or Bantustans and could not purchase land outside of those areas.[20] These areas were often arid and not suitable for agriculture which led to severe socio-economic consequences for the Native population. There are a variety of possible motives for passing this act, some of which include wanting to limit African squatters and encouragement from mining companies, although it is not known as to what the reason was.[20]

The Act had profound and lasting effects on land ownership, access, and economic opportunities for black South Africans. It was one of the early legislative measures that institutionalized racial segregation, setting the stage for the more comprehensive apartheid policies that were implemented later in the 20th century.[21] It was not until the Restitution of Land Rights Act of 1994 that the Native Land Act and other discriminatory legislation was addressed and attempted to be resolved. This new act set in place a process and identified who would qualify for the restitutions.[22] The general history of South Africa is heavily tied to the governing body's relationship to its Native population.

United States

Main article: Aboriginal title in the United States

"Next to shooting indigenous peoples, the surest way to kill us is to separate us from our part of the Earth."

Hayden Burgess, Hawaii[23]

The foundational decision for Aboriginal title in the United States is

Marhsall Trilogy, referring to Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832).[24]

In Johnson v. McIntosh, under the doctrine of discovery, it was ruled that Native Americans did not own their land, but rather had occupancy rights.[25] Thus, Native Americans could not sale land unless it was to the United States.[24] Cherokee Nation v. Georgia (1831) was another setback for Native rights, with a ruling that deduced the Cherokee Nation to a "dependent domestic nation" that was "under the sovereignty and dominion of the United States."[24] A year later, however, in Worcester v. Georgia (1832) Marshall's language and view of the Cherokee nation changed significantly. In it, he referred to the Cherokee nation as a nation and acknowledged that treaties are formed between two sovereign states.[24] In the years to follow, the Supreme Court has sometimes endorsed one viewpoint and at other times the other, as there is a big difference between the first two cases and the last.

In 1871, through the Appropriations Act of 1871, treaty making between different Native American tribes and the U.S. government ended. Although treaty-making had come to an end, previous treaty rights were to be followed still.[26] The Supreme Court has faced considerable controversy in cases dealing with natural resource treaties. Native Americans in the United States have largely been relegated to Indian reservations managed by tribes under the United States Department of the Interior's Bureau of Indian Affairs. In the case, Winters v. United States (1908), it was established that reservations are to be prioritized rights to water over non-native use.[27] Contested treaty cases have not always been ruled to the favor of Native Americans, however; an example is the United States v. Dion (1986) case.

Native Americans in the United States have largely been relegated to Indian reservations managed by tribes under the United States Department of the Interior's Bureau of Indian Affairs.

Civil law

Brazil

Main article: Indigenous territory (Brazil)

Indigenous land rights in Brazil is and has been an ongoing struggle for indigenous Brazilians, they have been treated as a minority group with no rights and are discriminated against. Discrimination against indigenous people has been present since colonization. In 1910 the Indian Protection Service was created due to the large amounts of violence inflicted on indigenous people, however this policy was ineffective and corrupt and was replaced by the National Indian Foundation in 1967. This policy worked to integrate indigenous people and effectively took their land so the government could prosper from its resources. In 1983 more demarcation laws were put in place, these laws prevented white settlers from stealing indigenous lands and further specified the borders of indigenous lands. However other state agencies were allowed to specify borders which was heavily influenced by the mining industry sectors. Only 14% of lands ended up being demarcated and lots of land was lost to mining companies.[28]

In 1988 Brazil adopted a new constitution, it said that Indigenous lands and culture would be protected. This bill allowed indigenous people to safely live in their territory without fear of their land or resources being taken. However this bill ended up being far less successful than it originally promised, the Brazilian government was supposed to demarcate all indigenous territories by 1993 but over those five years they only demarcated 50% of the territories.[29]

By 2017 still little action had been taken on securing the land rights of indigenous people in brazil. Brazil's president in 2017 declared a cutoff date on indigenous land. The bill stated that if the indigenous people were not in their territory before the 1988 cutoff, it was not their land to demarcate. 27 indigenous territories demarcation was suspended because of this cut off, even though the reason they couldn't declare their territory before 1988 was due to the government or because they couldn't prove they previously resided there.[30] In February 2020 president Jair Bolsonaro proposed bill 191/2020, which will allow Indigenous territories to be opened up to mining and hydroelectric generation.[31] This bill has caused push back from indigenous communities, it threatens the health of their land and the safety of their people.[32]

Mexico

The years after the

absentee landlords, and entitled the indigenous
population to a piece of land to work and live on.
Since the 1980s and 1990s the focus of Mexico's economic policy concentrated more on industrial development and attracting foreign capital. The
Constitution were modified, by means of which it became possible to privatize communal ejido land via allotment or other means. This undermined the basic security of Indigenous communities to aboriginal title.[citation needed
]

Customary law

Main article: Customary land

See also

References

  1. ^ Bouma; et al. (2010). Religious Diversity in Southeast Asia and the Pacific: National Case Studies. Springer.
  2. ^ "Indigenous & Community Land Rights". Land Portal. Land Portal Foundation. Retrieved 22 June 2017.
  3. OCLC 719377481
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  4. ^ "Mabo and Native Title The end of Terra Nullius, the beginning of Native Title". Australians together.
  5. ^ "Eddie Koiki Mabo". aiatsis. 15 August 2022.
  6. ^ a b "THE MABO CASE AND THE NATIVE TITLE ACT". No. Australian bureau of statistics. Australian bureau of statistics. 1995.
  7. ^ Aboriginal and Treaty Rights in Canada's Constitution, retrieved 28 November 2023
  8. ISBN 978-1-136-49447-5
    .
  9. ^ The historic Delgamuukw land claims case: 25 years later, retrieved 28 November 2023
  10. doi:10.22215/etd/2015-11064
    .
  11. ^ "Japan: New Ainu Law Becomes Effective". Library of Congress.
  12. OCLC 1100656471
    .
  13. ^ "Ecuador Votes to Keep Yasuní Oil in the Ground in Historic Referendum". NACLA. Retrieved 25 November 2023.
  14. ISBN 978-0-8122-4300-0
    .
  15. ISSN 0014-1801
    .
  16. ^
    ISSN 2324-3740
    .
  17. ^ Young G. Custom and the native land court. Yearbook of New Zealand jurisprudence. 2012;13/14:213-223.
  18. ^ a b c E oho! A short history of the Waitangi Tribunal — Where to from here?, retrieved 24 October 2023
  19. S2CID 144614158
    .
  20. ^
    JSTOR 219187
    .
  21. S2CID 144753367
    .
  22. S2CID 236701314
    , retrieved 25 November 2023
  23. ISBN 978-1-84400-729-5
    .
  24. ^
    ISSN 1540-5818
    .
  25. ISSN 0031-4528
    .
  26. S2CID 233340732
    .
  27. ISBN 9781608719099, retrieved 30 October 2023{{citation}}: CS1 maint: location (link
    )
  28. JSTOR 3339531
    .
  29. ^ "Indigenous Rights in Brazil". saiic.nativeweb.org. Retrieved 24 April 2022.
  30. ^ "Brazil: Reject Anti-Indigenous Rights Bill". Human Rights Watch. 24 August 2021. Retrieved 24 April 2022.
  31. ^ "Brazil Congress fast-tracks 'death package' bill to mine on Indigenous lands". Mongabay Environmental News. 15 March 2022. Retrieved 24 April 2022.
  32. ^ "Bolsonaro Threatens the Indigenous Right to Be | Amazon Watch". 20 February 2020. Retrieved 24 April 2022.

Bibliography

External links
Retrieved from "https://en.wikipedia.org/w/index.php?title=Indigenous_land_rights&oldid=1209434843"