International efforts to secure the land and resource rights of local and indigenous peoples are increasingly finding a friend in the law. National and international law, policies, and jurisprudence are coming together with “soft” legal guidelines and principles to yield stronger standards related to indigenous land and resource rights. Landmark cases are creating precedent for local or indigenous people who have been displaced to reoccupy or retain property, which may lead to strong tenure security and autonomy.
Over the past two decades, for example, various governments in the developing world have enacted land laws and policies that recognize the land use and access rights of communities marginalized under colonial and post-colonial regimes. Among these are Kenya, Liberia, Mozambique, South Sudan, and Tanzania. Burma is undertaking legal reform to recognize customary land rights, while Indonesia, Malaysia, and Papua New Guinea have already recognized customary lands. In Latin America, Argentina, Chile, Colombia, Nicaragua, and Panama have laws on the books protecting the land rights of indigenous communities.
At the same time, national jurisprudence related to the land and resource rights of indigenous or native peoples has slowly been shifting. Litigation, coupled with advocacy efforts to amend legislative frameworks, has helped drive recognition of some land rights of disadvantaged groups. Aboriginal peoples in Australia, the Maori in New Zealand, and First Peoples in North America have successfully litigated cases that recognize rights over some portion of the vast estates they held in pre-colonial times. As one example, since the landmark 1992 case of Mabo v. Queensland, the government of Australia has found that native title exists on more than 2 million square kilometers of territory, 38 percent of which is held as exclusive native title.
More recent cases in other countries have also favored local and indigenous peoples, perhaps the most notable being the Supreme Court of Canada’s decision in Tsilhqot’in Nation v. British Columbia (2014).
Case Study: The Tsilhqot’in Nation
The Tsilhqot’in Nation is composed of six tribes who live in a remote region of British Columbia—the Chiloctin Valley. The tribes fish, hunt, and use forest resources to support their livelihoods. Although some non-native peoples live in the region, there has been little inflow of outsiders and traditionally the Tsilhqot’in have managed their resources.
Like most native peoples in British Columbia, the Tsilhqot’in did not sign a treaty with the colonial British or post-colonial Canadian governments, and instead exercised significant control over their own lands. However, in 1983 the provincial government issued a 10-year license to Carrier Lumber to harvest 5 million cubic feet of timber on these lands, on the premise that the Chiloctin Valley forests belong to the provincial government.
The Tsilhqot’in Nation, which was not consulted prior to the government issuing the license, protested and called for discussions with the company. The requests were rejected. When Carrier began working on infrastructure and logging plans, local people set up roadblocks and protested further development. Finally, in 1990, the Tsilhqot’in sued the government to stop any harvesting that would harm their livelihoods. On appeal, the government won its case, which was then taken to the Supreme Court.
This case, 20 years in the making, considered three key questions: a) What is the proper test to establish aboriginal title in Canada and did the Tsilhqot’in Nation meet this test? b) What rights do aboriginal title holders possess? c) If aboriginal title exists, how does this title affect the jurisdiction of the provincial government and what legal rights does the provincial government retain on aboriginal lands?
Regarding the first question, the court noted that the burden of establishing the title claim rests with those seeking it. In this case, the semi-nomadic bands of Tsilhquot’in Nation had met the test by regularly using lands for hunting, fishing, and utilizing other natural resources. With regard to the second question, the court relied on an earlier case (Delgamuukw) to find that aboriginal title “encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes” including nontraditional purposes, provided these uses can be reconciled with the communal and ongoing nature of the group’s attachment to the land. In this case, the government breached its duty to consult when it planned for the timber license without engaging with the Tsilhqot’in. Put simply, the Tsilhqot’in decision establishes a right of consent over purposed land use for aboriginal title holders.
Finally, with regard to the third question on the role of provincial laws and regulation vis-à-vis aboriginal lands, the court found that provincial laws of general application, such as those related to environmental protection or forest health, do apply to lands held under aboriginal title within constitutional limits (those related to Section 35 of Constitution Act, 1982). This finding leaves in place the government’s ability to regulate lands consistent with its fiduciary responsibilities.
This decision potentially affects Canadian land in areas where aboriginal title has not yet been extinguished, including substantial parts of the country from the Maritime Provinces in the east to the southern Yukon in the west. It may be particularly important for companies that hold government licenses to develop natural resources. And it sets the stage for indigenous people to promote the kinds of economic development they value.
Although it can take years to litigate land claims, recent cases in Australia, Colombia, and Paraguay have similarly found in favor of indigenous peoples against governments and private sector actors1. By finding that local or indigenous people’s rights were violated as a result of faulty consultation or failure to notify, these cases represent a limited but increasingly important strand of decision making—one that is finding in favor of indigenous peoples and their rights to be meaningfully involved in decision making about their traditional lands.
In line with this trend, a recent commentary filed at the International Criminal Court seeks to investigate national leaders and private business actors with ties to the government of Cambodia for crimes against humanity based on land grabbing—a glimpse of the direction in which litigation related to large-scale land acquisitions may be headed.
Such cases highlight the need for businesses to strengthen due diligence and community engagement when they acquire rights to land and resources. The United Nations Guiding Principles on Business and Human Rights (2011) underscored the need to respect rights related to the use of land and resources and remedy violations of these rights. These principles in turn underpin the 2012 Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests in the Context of National Food Security, a landmark initiative that provides high-level guidance to national governments on aligning laws and policies to improve land governance, land transparency, and land rights. With support from international donors, some governments are working to operationalize this guidance. Businesses are modifying practices and policies, and developing corporate commitments to respect and protect rights. Court cases that hold businesses liable for failure to respect rights—and that require businesses to return lands and/or pay compensation for harms created—may increase the uptake of new practices.
In short, centralized control of land and resources seems to be shifting toward a more devolved model—a devolution that combines expanded management responsibilities with greater rights to benefit from the use of these resources. The extent to which this trend will deliver positive outcomes depends, in part, on the ability of local communities to exercise and enforce their new rights. Building that enforcement capability will be a key challenge for those development practitioners working at the intersection of legal and land matters.
These cases include: Croft on behalf of the Barngarla Native Title Claim Group v. State of South Australia; Sawhoyamaxa/Exnet Case (Supreme Court of Justice of Paraguay); and Embero/Katia Case (Land Restitution Tribunal of Colombia). ↩