Because this is a particularly long and important section, I will break it down over two or three days.
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III. FRAMEWORK FOR THE ANALYSIS OF CONTEMPORARY PROBLEMS REGARDING INDIGENOUS LAND RIGHTS
A.) Failure of States to acknowledge indigenous rights to lands, territories and resources
- This most fundamental and widespread problem is divided into two parts: the failure of States to recognize the existence of indigenous use, occupancy and ownership, and the failure of States to accord appropriate legal status, juridical capacity and other legal rights in connection with indigenous peoples’ ownership of land.
1. Failure of States to recognize the existence of indigenous use, occupancy and ownership
"Countries in many parts of the world are unaware of or ignore the fact that communities, tribes or nations of indigenous peoples inhabit and use areas of land and sea and have done so, in many cases, since time immemorial. These areas are typically far from the capitals and other urban areas of the country and typically countries regard these lands and resources as public or government lands. Although the indigenous people concerned regard themselves, with good reason, as owning the land and resources they occupy and use, the country itself, typically, disposes of the land and resources as if the indigenous people were not there. These
governmental tendencies are further exacerbated in federations such as Canada and the United States, where state/provincial and even municipal governments sometimes pursue such actions, either in coordination with the central or national Government, or independently and in pursuit of their own policy.
2. Failure of States to accord appropriate legal status, appropriate juridical capacity and other legal rights
"This problem is closely related to the one discussed above. Although States know that indigenous communities, nations or groups exist and have exclusive use and occupancy of an area, some States do not acknowledge that the indigenous peoples concerned have legal entitlement or rights to the land or resources. In some situations, the indigenous peoples are regarded as using the public or national lands at the sufferance of the Government.
"The concept of aboriginal title and the relationship of this legal concept to the human rights of indigenous peoples is centrally important. In many countries, particularly those of the British Commonwealth, exclusive use and occupancy of land from time immemorial gives rise to aboriginal title, a title that is good against all but the Sovereign, that is, the Government of the State. Where aboriginal title is recognized, indigenous peoples have at least some legal right that can be asserted in the domestic legal system. However, aboriginal title is often subject to the illegitimate assumption of State power to extinguish such title, in contrast to the legal protection and rights that, in most countries, protect the land and property of non-indigenous citizens, their individuals and corporations ... This single fact probably accounts for the overwhelming majority of human rights problems affecting indigenous peoples.
B.) Discriminatory laws and policies affecting indigenous peoples in relation to their lands
- "In those States that have developed a body of positive law and a body of jurisprudence in regard to indigenous peoples... the most significant problems appear to arise because of persistent discriminatory laws and legal doctrines that are applied to indigenous peoples and their lands and resources.
1. Laws regarding the extinguishment of indigenous peoples’ land and resource rights
Practically all countries where indigenous peoples live assert the power to “extinguish” the land titles and rights of the indigenous peoples within their borders, without the consent of the indigenous peoples. The concept of extinguishment includes voluntary purchase and sale of title, but more commonly the term “extinguishment” is used to mean outright taking or expropriation, most often without just compensation. Like the concept of aboriginal title, extinguishment is a term that came into prominent use during the colonial period.
"One particularly clear example of the problem of extinguishment is provided by the case of the Tee-Hit-Ton Indians v. United States. In this case the Supreme Court decided that the United States may (with limited exceptions) take or confiscate the land or property of an Indian tribe without due process of law and without paying just compensation, this despite the fact that the United States Constitution explicitly provides that the Government may not take property without due process of law and just compensation. The Supreme Court found that property held by aboriginal title, as most Indian land is, is not entitled to the constitutional protection that is accorded all other property. The racially discriminatory nature of the Tee-Hit-Ton decision can be seen in the opinion, an extract of which follows:
“No case in this court has ever held that taking of Indian title or use by Congress required compensation. The American people have compassion for the descendants of those Indians who were deprived of their homes and hunting grounds by the drive of civilization. They seek to have the Indians share the benefits of our society as citizens of this Nation. Generous provision has been willingly made to allow tribes to recover for wrongs, as a matter of grace, not because of legal liability.
“'... Every American schoolboy knows that the savage tribes of this
continent were deprived of their ancestral ranges by force and that, even
when the Indians ceded millions of acres by treaty in return for blankets,
food and trinkets, it was not a sale but the conquerors’ will that deprived
them of their land.'”
"The legal doctrine created by this case continues to be the governing law on this matter in the United States today."
"[Canada's] Constitution Act of 1982, section 35 (1), recognizes and affirms aboriginal and treaty rights. By reason of the Constitution Act of 1982, courts in Canada no longer acknowledge government power to “extinguish” aboriginal rights. Instead, the courts have decided that aboriginal rights, including aboriginal land title, are not absolute but may be “infringed” by the federal or provincial governments when the infringement is “justified” by the needs of the larger society. In a recent case, Chief Justice Lamer of the Supreme Court of Canada wrote: 'In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title.' (Delgamuukw v. The Queen, paragraph 165 of the Chief Justice’s opinion, unpublished decision, 11 December 1997). It remains unclear whether this new requirement of “justification” will in fact provide greater protection to indigenous land rights than previous law... [I]t also remains doubtful whether the law accords an equal, non-discriminatory level of legal protection to indigenous property rights as compared to the property rights of others.
2. Plenary power doctrine
Another discriminatory legal doctrine that appears to be widespread is the doctrine that States have practically unlimited power to control or regulate the use of indigenous lands, without regard for constitutional limits on governmental power that would otherwise be applicable. In the United States, this is known as the “plenary power doctrine” and it holds that the United States Congress may exercise virtually unlimited power over indigenous nations and tribes and their property. No other population or group is subject to such limitless and potentially abusive governmental power.
3. Treaty abrogation and land rights
"... Treaties have been used, among other purposes, as mechanisms for gaining cessions of indigenous land and for ostensibly guaranteeing rights to the remaining lands held by the indigenous nation. The problem of discrimination arises when the State later abrogates or violates the treaty. In the typical case, the injured indigenous nation or tribe has no legal remedy against the State either in domestic law or under international law. The denial of any remedy under international law is inconsistent with the use of treaties as a legal mechanism and with the status of indigenous peoples as subjects of international law. Thus, indigenous peoples appear to be unique in being denied legal remedies for violation of their rights where the State abrogates or violates a treaty between the State and an indigenous nation, tribe or peoples. Certain States, including New Zealand and the United States, regard treaties as instruments of domestic law as well as international law and accordingly do not believe a remedy under international law is necessarily appropriate. The question, in such cases, remains whether a just remedy is provided for treaty violation or abrogation, and whether the use of the treaty mechanism in domestic law is non-discriminatory."
The next post will begin with the failure of States to demarcate indigenous lands.
This is all something to think about, yes?
Colleen
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