A New Dawn over the Land: Shedding Light on Collective Ownership and Consent

A New Dawn over the Land: Shedding Light on Collective Ownership and Consent
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  1 12  A New Dawn over the Land: Shedding Lighton Collective Ownership and Consent Jérémie Gilbert and Cathal Doyle Introduction It is now widely recognised that a profound cultural, social and spiritual relationship withtheir lands and territories is characteristic of indigenous peoples and fundamental to theirsurvival. In spite of this fact, indigenous peoples have been and are repeatedly deprived of their lands, territories and resources. 1  Present day economic imperatives arising fromglobalisation are putting new strains on indigenous peoples’ rights over their traditionalterritories. 2  Driven by the demands of an increasingly globalised economy and the openingup of markets in developing countries to foreign direct investment, activities such as mining,logging, dam construction and mono-cropping are becoming synonymous with violations of indigenous peoples’ rights, resulting in ongoing tensions and conflicts between indigenouspeoples, states and transnational corporations. Central to the realization of indigenouspeoples’ land and self-determination rights is their ability to ensure recognition andenforcement of these rights. 1 See Indigenous Peoples and their Relationship to Land  , Final Working Paper Prepared by the SpecialRapporteur, E-I Daes, UN Doc E/CN.4/Sub.2/2001/21. 2 For references, see M Stewart-Harawira, The New Imperial Order: Indigenous Responses toGlobalization (London, Zed Books, 2005).  2In recent decades, owing to the difficulties encountered in relation to access to justice at thelocal level pertaining to the enforcement of their rights, many indigenous peoples haveturned to international legal institutions. 3  This has resulted in the emergence of animportant body of international human rights law relating to indigenous peoples’ landrights. 4  However, this regime is still in its infancy and remains somewhat fragmented.Cognisant of this, indigenous peoples and the organisations that were involved in thenegotiations for the adoption of the UN Declaration on the Rights of Indigenous Peoples(‘the Declaration’) placed great emphasis on the need for strongly worded and unambiguouslanguage pertaining to their land, territory and resources and associated self-determinationrights in this Declaration. Accordingly, it was expected that a universal declaration on therights of indigenous peoples would reflect the importance of these rights for indigenouspeoples.The aim of this chapter is to evaluate the potential significance of the adoption of theDeclaration in the development of international legal standards regarding indigenouspeoples’ land, territory and resource rights. Despite the expanding jurisprudence generatedby the UN treaty monitoring bodies on indigenous peoples’ rights, 5  questions remain as tothe capacity of general international human rights law to successfully accommodate 3 The UN declared 1994–2004 the First World Decade on the Rights of Indigenous Peoples and 2005–15 the second decade; see   GA Res A/RES/48/163 (1994) and Res A/RES/59/174 (2005). See also SJAnaya, Indigenous Peoples in International Law (Oxford University Press, 2004). 4 J Gilbert, Indigenous Peoples’ Land Rights under International Law: From Victims to Actors (NewYork, Transnational, 2006). 5 See generally   P Thornberry, Indigenous Peoples and Human Rights (Manchester University Press,2002).  3indigenous peoples’ specific territorial claims at the local level. Given this context, thischapter aims to examine to what extent the Declaration can serve as a positive force toprotect indigenous peoples’ land, territory and resource rights by providing the basis for thedevelopment of a strong corpus of specific territorial and associated self-governance rightsfor indigenous peoples. The chapter is divided into three sections. The first section analysesthe extent to which the Declaration plays an important role in affirming and recognisingindigenous peoples’ specific relationship with their lands and territories. The authors go onto examine how, in a context where many states have traditionally been reluctant torecognise collective rights, the Declaration articulates a collective right to lands, territoriesand resources. 6  The following section addresses the requirement that, in accordance withtheir right to self-determination, indigenous peoples’ free, prior and informed consent isobtained in the context of developments that impact on their lands and territories, inparticular in relation to resource exploitation. It examines the Declaration’s potential tocontribute to the realisation of this self-determination requirement in practice and to act asa platform for the affirmation of a right to free, prior and informed consent within thenormative framework of indigenous peoples’ rights. Drawing from their analysis, the authorsconclude the chapter by arguing that the true significance of the Declaration can only befully appreciated when viewed in its historical context as having emerged from thesystematic denial of indigenous peoples’ rights; its contemporary context as an integralcomponent of the evolving normative framework pertaining to the rights of indigenouspeoples; and its future context as a platform for the elaboration and realisation of theserights. 6 D Sanders, ‘Collective Rights’ (1991) 13 Human Rights Quarterly  368; C Holder and J Corntassel,‘Indigenous Peoples and Multicultural Citizenship: Bridging Collective and Individual Rights’ (2002) 24 Human Rights Quarterly  126.  4 Land Rights and Cultural Identity The United Nations Permanent Forum on Indigenous Issues (PFII) recently observed that‘Land is the foundation of the lives and cultures of indigenous peoples all over theworld.Without access to and respect for their rights over their lands, territories and naturalresources, the survival of indigenous peoples’ particular distinct culture is threatened.’ 7  Forindigenous peoples, land is not only a source of economic livelihood but also the source of spiritual, cultural and social identity. From this perspective indigenous peoples’ claims toland rights involve not only traditional property rights and claim to title to territory but alsocultural, social and spiritual claims. It is this specificity that indigenous peoples wanted theDeclaration to reflect. The recognition of indigenous peoples’ specific claims to land in theDeclaration was seen as an important step for international law as, historically, internationallaw had been a major factor in the alienation of indigenous peoples’ land rights. The Origins: International Law and Dispossession International institutions working with indigenous peoples have begun to acknowledge thisspecific connection between cultural identity and land rights for indigenous peoples, but thispractice is recent. Traditionally, international law and legal institutions at the national levelhave played a significant role in the destruction of indigenous peoples’ cultures bysupporting acts of dispossession and legalising the colonisation of indigenous peoples’territories. 8  Justifications of such colonisation were invariably based on racist approaches 7 Permanent Forum on Indigenous Issues, Report on the Sixth Session (14–15 May 2007), Economicand Social Council Official Records Supplement No 23, UN Doc E/2007/43, E/C.19/2007/12, para 4. 8 See generally L Robertson, Conquest by Law (Oxford University Press, 2005); RA Williams, Jr, The American Indian in Western Legal Thought  (Oxford University Press, 1990).  5towards indigenous cultures. Notions such as terra nullius and discovery assumed thatindigenous peoples were so uncivilised that they could be considered not to exist and thatconsequently their lands were open to conquest. 9  Ironically, the universalisation of international law was principally a consequence of the imperial expansion that took place inthe past centuries, as one of the first doctrines of international law was the recognition of aright of conquest for the imperial powers. 10  Through such theory international law hasaffirmed the superiority of imperial colonial powers over indigenous communities. A cleardistinction between the ‘civilised’ and the ‘non-civilised’ served to assert that internationallaw applied only to the sovereign states that composed the so-called ‘civilised family of nations’. 11  With the assumption of the superiority of ‘civilised’ states and the denial of thelegal existence of so-called ‘non-civilised communities’, indigenous communities wererefused ownership of their lands.Probably the best summary of international law’s approach to land rights during the colonialera comes from Lindley’s famous book The Acquisition of Backward Territory  , in which he 9 See especially M Bedjaoui, Terra nullius, ‘droits’ historiques et autodétermination (La Haye, Exposésoraux prononcés devant la Cour Internationale de Justice en l’affaire du Sahara Occidental, 1975). 10 See generally P Keal, European Conquest and the Rights of Indigenous Peoples (CambridgeUniversity Press, 2003). 11 See generally M Koskenniemi, The Gentle Civilizer of Nations (Cambridge University Press, 2001); AAnghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press,2004).
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