A. Historical Treatment of Indigenous Peoples’ Land Rights

Questions concerning the relationship between Europeans and indigenous peoples began in earnest with the advent of European exploration and the conquest of the Western hemisphere that followed.Footnote ⁶ After the arrival of Europeans on the shores of the Americas, Pope Alexander VI “granted the Spanish monarchs all territories discovered by their envoys that were not already under the jurisdiction of Christian rulers”.Footnote ⁷ For the Spanish monarchy, legal title to all lands of the “New World” was established through papal donation.Footnote ⁸ However, prominent theologian Francisco de Vitoria questioned the moral and legal claims to the “New World” and the brutal settlement patterns that followed.Footnote ⁹ As a natural or divine law theorist, meaning that he considered God the prominent source for binding legal and moral codes, Vitoria saw the authority of monarchs as temporal.Footnote ¹⁰ Any official practices that were at odds with the European ecclesiastical humanist moral code were deemed unlawful.Footnote ¹¹ Within this naturalist legal frame, Vitoria found that the “American Indians” were indeed rational beings, which inherently granted them original rights and the ability to have dominion over land.Footnote ¹²

However, in affirming the rights of the indigenous people, Vitoria also held that indigenous peoples were bound to an important Roman aspect of natural law: ius gentium.Footnote ¹³ Under ius gentium, indigenous people, as rights-holders, also had obligations to fulfil, such as allowing trade, travel, and proselytizing in favour of Christianity.Footnote ¹⁴ As the indigenous people were consistently disrupting these activities, Vitoria maintained that war and conquest of the indigenous people and their land could be justified.Footnote ¹⁵ Therefore, in accordance with natural law, Vitoria believed that although the “American Indians” could possess lands because he conferred upon them rationality, their lands could be justifiably dispossessed if indigenous peoples did not conform to natural law. As James Anaya explains:

Following the early natural law theorists’ dealings with indigenous peoples’ land rights, the most significant event was the advent of the modern nation-state system, which began in earnest after the Treaty of Westphalia in 1648. Against the backdrop of emerging autonomous European states-societies, English philosopher Thomas Hobbes wrote his seminal work Leviathan, in which he presents an early version of the social contract theory and, more importantly in this case, introduces the individual-state framework. In Leviathan, Hobbes sees individuals in the state of nature as existing constantly in a war of all against all. In surrendering natural freedom but accepting the legitimacy or authority of a state, individuals can reap the benefits of political order. For Hobbes, the natural rights of states therefore became analogous to the natural rights of individuals.

Expanding upon Hobbes's vision, Swiss diplomat Emmerich de Vattel wrote The Law of Nations, or The Principles of Natural Law, which developed a body of law that concerned itself exclusively with duties of nations or states, and the positive obligations between nations or states.Footnote ¹⁷ The jurisprudential framework articulated by Vattel was the foundation for nation-state territorial sovereignty: where nations are free, independent, and equal; where non-intervention should be respected; and where territorial integrity should be upheld.Footnote ¹⁸ In the Vattelian system of international law, if indigenous peoples were to enjoy territorial sovereignty, an assessment would have to be made concerning their nationhood and/or statehood.Footnote ¹⁹ The determination of whether indigenous communities could be considered nation-states was a vital issue for indigenous peoples’ land rights, as only nation-states were entitled to territorial ownership and sovereignty. Otherwise, indigenous communities would simply be inhabitants in tracts of land that belonged to no one.

The notion of statehood at the time was based upon European models of political and social organization.Footnote ²⁰ In conjunction, nationhood was seen as the existence of politically conscious groupings bound together by a common history, culture, and ethnic characteristics.Footnote ²¹ While many indigenous communities could fulfil these requirements, central to the definition of a nation-state was the attachment “to a specific territory in which a nation exercises its exclusive sovereignty”.Footnote ²² Therefore, a distinction between sedentary and nomadic hunter-gatherer societies was made. Inherent in this definition of nation-state was the superiority of settled agricultural societies, rejecting all communities that were not organized on the European model of land tenure prevalent at the time.Footnote ²³ The indigenous notion of collective or communal land ownership fell in between individual property rights and nation-state territorial sovereignty, thus making their lands “empty territory”, or terra nullius.Footnote ²⁴

The concept of terra nullius was not new to international law, as it issued from Roman law and originally meant unoccupied territory. However, in the era of colonization, the doctrine of terra nullius evolved and referred not to uninhabited territory, but territory that was not subject to any recognized territorial sovereignty or “civilized” government. Therefore, during the era of European colonization, a significant part of the world was “legally” empty and ripe for acquisition, occupation, and conquest.Footnote ²⁵ As Joshua Castellino further explains:

Colonial powers advancing the concept of terra nullius coincided perfectly with Lassa Oppenheim's constitutive theory of recognition of statehood, which posited that states existed in international law only after being recognized by states already within the “Family of Nations”.Footnote ²⁷ Therefore, colonial powers decided themselves if lands were legally empty.

Vattel's philosophy, terra nullius, and nation-state territorial sovereignty became crystallized in domestic legal proceedings at the beginning of the nineteenth century. Early judicial treatment of indigenous peoples’ land rights in the United States served to reinforce future decisions in Canada and New Zealand concerning common-law recognition of Aboriginal land rights, but was also used to extinguish land claims in Australia, India, and Malaysia.Footnote ²⁸ In the now famous Johnson v. M'Intosh Footnote ²⁹ case, the United States Supreme Court was confronted with two competing land claims: the plaintiff stated that the land at issue was originally purchased from the Piankeshaw Native American tribe, whereas the defendant had obtained a land patent from the US federal government. The judgment was given for the defendant on the basis that land title issued by the US government was superior to that acquired from the Piankeshaw Native American tribe. Chief Justice Marshall concluded that the title to land derived from discovery, whereas the interest retained by the Piankeshaw was only one of occupation.Footnote ³⁰ For Marshall, the indigenous populations within the US were fierce savages locked in the state of nature and had not been invited into the “Family of Nations”.Footnote ³¹ As such, the lands upon which the indigenous peoples stood were ripe for acquisition and to be cultivated “in a manner indicative of a developed sense of individual property”.Footnote ³² Moreover, in a later case, Cherokee Nation v. Georgia,Footnote ³³ Chief Justice Marshall remarkably accepted the Cherokee Nation as a distinct political society but viewed it as a sovereign entity within the Constitution of the US, not as a foreign state.Footnote ³⁴

Terra nullius, or the doctrine of discovery, provided European powers with a legal justification, recognized in international law, which could be manipulated depending on the geopolitical situation or the political wishes of the colonial powers.Footnote ³⁵ The legitimacy of the terra nullius doctrine remained unchallenged in international law until the International Court of Justice (ICJ) was invited to reflect on the legality of the terra nullius in the Western Sahara Footnote ³⁶ case. In this case the ICJ was asked to give an advisory opinion in determining if the Western Sahara (Rio de Oro and Sakiet El Hamra) was a territory belonging to no one at the time of Spanish colonization. In its ruling, the ICJ highlighted that, at the time of colonization, the Western Sahara was inhabited by nomadic peoples who were organized in a political and social system of tribes and who were represented by competent chiefs.Footnote ³⁷ Furthermore, the King of Spain had proclaimed that he was taking Rio de Oro under his protection on the basis of agreements entered into with the aforementioned chiefs.Footnote ³⁸ Therefore, because of the existence of “legal ties”, the territory could not be regarded as terra nullius.Footnote ³⁹

Following the ICJ's determination of the inapplicability of the terra nullius principle in the immediate case, the ICJ was also asked to define whether Spain or Morocco owned the disputed territory. Although a revolutionary step was taken in acknowledging that a territory inhabited by nomadic peoples with a degree of political and social organization cannot by nature be terra nullius, the ICJ maintained the traditional view that only states can exert territorial sovereignty.Footnote ⁴⁰ Recognition of this territorial sovereignty stems from states’ activities over a defined territory.Footnote ⁴¹

The doctrine of terra nullius would not be exposed as a racist and legal fiction until many years after the Western Sahara case. Moreover, it would not be the ICJ which was tasked with exposing the fallacies or addressing the legacy of the terra nullius principle, but the Australian High Court. In 1788, when the British arrived on the shores of Australia, they took possession of the entire country under the premise that there was no human organization present, in effect making the entire territory uninhabited.Footnote ⁴² The large-scale application of the terra nullius doctrine was aptly summarized and justified by Justice Burton in the case of R v. Jack Congo Murrell:

Although the issue of Aboriginal land rights seemed settled in the nineteenth century, towards the close of the following century the Australian High Court seemed willing to hear arguments concerning the assertion to sovereignty.Footnote ⁴⁴ In 1981, Eddie Koiki Mabo and four other plaintiffs, all Meriam peoples from Murray Island in the Torres Strait, claimed title to their lands under Meriam land law and long possession. In the judgment of Mabo v. Queensland Footnote ⁴⁵ a majority of six judges agreed that traditional indigenous titles had continued after the colonization of Australia. Importantly, the Court dismissed the earlier doctrine, which denied many of the rights of indigenous peoples based on false, unjust, and discriminatory presumptions of the “minimal scale” of their social and political organization.Footnote ⁴⁶ In addressing the principle of terra nullius specifically, Justice Brennan concluded:

Although the doctrine of terra nullius was effectively disregarded in international law after being rightly regarded as a discriminatory theory when applied to territory occupied by indigenous peoples, two other concepts were used to continue to deny indigenous peoples’ land claims: effective occupation and uti possidetis.Footnote ⁴⁸ Since the eighteenth century, the term “effective occupation” has been used in conjunction with the “discovery” of a territory. However, with the emergence of new actors, mainly as successors to the colonial powers, international tribunals and arbitrations were needed to sort through competing claims of ownership and possession during transfers or annexations of territories.Footnote ⁴⁹ For a conquering nation to prove effective occupation meant that that nation had met the necessary conditions for title to the disputed territory. Indigenous peoples’ system of ownership did not reflect the “civilized” European standards and were therefore incapable of occupation.Footnote ⁵⁰ Sadly, jurisprudence from international courts and arbitrations affirming this ideology is all too easy to find. The case of Island of Palmas, where the US and the Netherlands claimed sovereignty over the island, “expresses the idea that indigenous socio-political organizations could not be part of the law of nations and therefore could not exercise effective occupation of a territory”.Footnote ⁵¹ In the Eastern Greenland Footnote ⁵² case decided by the Permanent Court of International Justice, the judges only saw fit to take into consideration the effective occupation of Denmark and Norway, ignoring several indigenous communities that inhabited the territory in question.Footnote ⁵³ As late as 1994, in deciding the Territorial Dispute (Libya v. Chad) Footnote ⁵⁴ case, which concerned a territorial dispute between Libya and Chad over the Aouzou Strip, the ICJ determined that neither country had exercised effective occupation but did not regard the Toubou indigenous community as having effective occupation even though they were practically the only inhabitants. Therefore, effective occupation, as Jérémie Gilbert explains, “appears as a legal mechanism ensuring the consolidation of the colonization of indigenous peoples’ territories with a complete disregard to their existence on these lands”.Footnote ⁵⁵

The doctrine of uti possidetis has its origins in Roman private law but has evolved in international law to mean preserving order. Uti possidetis became integral during the period of decolonization, where, in the interest of keeping order, unity, and territorial integrity, the boundaries drawn by colonial powers, no matter how arbitrary their character, were kept.Footnote ⁵⁶ As the ICJ explained in Frontier Dispute (Burkina Faso v. Mali):

By implementing the doctrine of uti possidetis, the international community, whether knowingly or not, disregarded the cultural and spiritual importance many indigenous communities traditionally placed on their lands.Footnote ⁵⁸ Instead, territory was seen merely as a portion of land where successor states could consolidate their power and their ownership of all lands within those boundaries.Footnote ⁵⁹ Moreover, by utilizing the principle of uti possidetis, international law began an era of extinguishing any territorial identity of indigenous peoples, replacing it instead with the geographical legacy left by the colonial powers.Footnote ⁶⁰

B. The International Labour Organization Conventions

During this era of decolonization, with the push for the abolition of colonialism, the ideal of people freely determining their destiny and having access to their lands and resources began to take hold. Theoretically, one could assume that this would also benefit indigenous peoples, particularly in establishing a right to land. Unfortunately, the decolonization procedures seemed to preclude indigenous communities living in enclaves within independent states.Footnote ⁶¹ This was due in part to the development of the “Blue Water” thesis, which limited the application of the colony to peoples separated from their colonizers by miles of blue water.Footnote ⁶²

However, a measure of international concern towards the political, social, economic, and cultural situation of indigenous peoples did eventually take hold and was embodied in the 1957 ILO Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (ILO Convention No. 107).Footnote ⁶³ The objective of ILO Convention No. 107 was to address, as a binding legal instrument, the specific measures needed to combat the oppression, marginalization, and discrimination of indigenous and tribal populations, and to protect their human rights. The result, however, was rightly criticized for its paternalistic approach and the expressed desire of assimilating indigenous communities into the dominant political and social orders that surrounded them.Footnote ⁶⁴ ILO Convention No. 107 sought to improve the social and economic conditions for all members of indigenous groups, but in the context of nation-building: where homogeneity was sought in an effort to minimize competing ethnic or cultural bonds and where indigenous groups were not envisaged to have political significance or representation.Footnote ⁶⁵ As aptly summarized by Lee Swepston: “Convention No. 107 contains a fundamental flaw … It takes a patronizing attitude towards these population groups … and promotes eventual integration as the way to resolve the problems caused to States by their continued existence. It presumes that they will disappear as separate groups once they have the opportunity to participate fully in the national society … .”Footnote ⁶⁶ In an effort to better understand, take for example the following excerpts from ILO Convention No. 107:

Despite the obvious critiques, ILO Convention No. 107 did recognize the right to collective land ownership over areas traditionally occupied by indigenous populations, albeit not an absolute right, as populations could be removed in the interest of national economic development.Footnote ⁶⁷ Although much maligned, ILO Convention No. 107, at a minimum, gave indigenous peoples, and more specifically their collective rights to land, a permanent place in international human rights discourse.

Throughout the 1960s and 1970s, indigenous peoples continued to garner increased attention to their demands for continued survival as distinct communities with historically based entitlements to land.Footnote ⁶⁸ Moreover, indigenous peoples were increasingly taking charge of the human rights agenda that concerned them.Footnote ⁶⁹ When the ILO convened a “Meeting of Experts” to discuss a revision of ILO Convention No. 107, representatives from the World Council of Indigenous Peoples made their voices heard:

The critique on the state-centric leaning of ILO Convention No. 107, and the marked change in the philosophy of integration and assimilation, resulted in the drafting of a more up-to-date binding legal instrument, ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No. 169).Footnote ⁷¹ The Preamble of ILO Convention No. 169 illustrates the historical and intellectual changes with regards to the perception of indigenous rights:Footnote ⁷²

What is striking is that even in the Preamble one notes the receptiveness to collective rights, acknowledgement of the contributions made by indigenous peoples, and the promotion of indigenous peoples’ self-management and development of their identity by their own accord.Footnote ⁷³

In terms of land rights,Footnote ⁷⁴ ILO Convention No. 169 “includes stronger guarantees … than any other existing human rights right instrument”.Footnote ⁷⁵ Deviating even further from the previous Convention, ILO Convention No. 169 recognizes the special importance indigenous peoples place on their relationship with lands or territories and emphasizes that states must respect this relationship.Footnote ⁷⁶ Articles 13, 15, and 16 offer an expansive definition of lands, which includes the concept of territories, covering the total environment and natural resources pertaining to the aforementioned lands. Although states retain ownership of subsurface resources, the duty to consult affected peoples prior to development is required, and the peoples should be able to participate in the benefits of subsurface resource development. Article 17 recognizes indigenous procedures for land transfers and prevents non-indigenous peoples from using their knowledge of the domestic law to secure ownership, possession, or use of indigenous peoples’ land. Finally, Article 14 is the most fundamental: it links the concept of ownership and possession; it is strongly worded; it recognizes the collective aspect of land ownership; it does not require present occupation; it encourages the identification of lands that indigenous peoples traditionally occupy; and it benefits the indigenous peoples who have been granted formal title.Footnote ⁷⁷

Of course, ILO Convention No. 169 is not without its share of criticism. Most notably, indigenous peoples did not take part in the preparatory works, nor did they help shape the form and content of the Convention.Footnote ⁷⁸ Moreover, the right of consultation enshrined in Article 6 appears to be a formalistic procedural obligation as the state can take measures affecting the lands, territories, and natural resources traditionally held by indigenous peoples without obtaining their consent, and indigenous communities are not granted the right of veto.Footnote ⁷⁹ Finally, ILO Convention No. 169's greatest weakness is perhaps the inability of indigenous peoples to directly access the monitoring mechanisms through individual communications or communications by workers’ or employers’ associations.Footnote ⁸⁰

It is worth noting, however, that organizations have been submitting “representations” to the Committee of Experts on the Application of Conventions and Recommendations (CEACR), where it is alleged that governments have failed to implement ILO provisions effectively. In 2005, a report submitted to the CEACR by a Guatemalan indigenous organization referred to “symbolic” participation because “there is no specific institutional machinery for consultation” so that “31 concessions were granted for the exploitation of mineral resources and 135 for exploration, with no prior consultation with the indigenous peoples as to the viability of such activities or their environmental impact”.Footnote ⁸¹ Similarly, in 1997, the CEACR observed that, in making decisions involving legislative measures that may impact land ownership of indigenous peoples, the Peruvian government should have had consultations with them.Footnote ⁸² In 1998, the CEACR came to similar conclusions vis-à-vis Bolivia, when they requested the government to conduct consultations and impact studies with indigenous communities prior to granting logging concessions.Footnote ⁸³

C. United Nations Treaty Bodies

At the level of the United Nations (UN), numerous basic human rights instruments, while not explicitly mentioning indigenous peoples, contain provisions relevant to indigenous peoples and their land rights. Notable examples include the International Covenant on Civil and Political RightsFootnote ⁸⁴ (ICCPR) and the International Covenant on Economic, Social and Cultural RightsFootnote ⁸⁵ (ICESCR). Article 1 of both the ICCPR and the ICESCR recognizes that “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Possessing the right to self-determination has been integral in the demands made by indigenous peoples, but the scope of self-determination remains mired in controversy.Footnote ⁸⁶ Self-determination has generally been seen from a political dimension, where peoples living under foreign or military occupation decide upon their future international status, perhaps calling for independence. In the modern era, indigenous peoples have, in general, never been seeking independent statehood, instead seeking the natural counterpart, economic self-determination, which has never received full attention at the international level.Footnote ⁸⁷ However, the economic aspect of self-determination, and the right to effective and meaningful participation that flows from it, is of utmost importance because, without control of their traditional lands and resources, efforts to preserve indigenous ways of life and culture may fall short.Footnote ⁸⁸

Although the ICCPR and the ICESCR do not explicitly refer to indigenous peoples’ land rights, “a number of the issues affecting indigenous peoples” began to be “addressed in the context of individual human rights regimes”.Footnote ⁸⁹ The Human Rights Committee (HRC), which adjudicates complaints that signatory states have violated the rights of individuals protected under the ICCPR, has a broad mandate, enabling it to comment extensively on indigenous land rights protected under Article 27 of the ICCR.Footnote ⁹⁰ Article 27 of the ICCPR recognizes the rights of ethnic, religious, or linguistic minorities “to enjoy their own culture, to profess and practice their own religion, or to use their own language”. In General Comment No. 23, the HRC observed “that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples”.Footnote ⁹¹ Such an interpretation by the HRC demonstrates that they recognize how indigenous lands are intertwined with the integrity of indigenous cultures and economies.Footnote ⁹² In numerous cases, the HRC has held that state-facilitated destruction of traditional indigenous territory, even if the territory is untitled, constitutes a violation of Article 27 if such destruction negatively affects the indigenous peoples’ ability to sustain their tradition, culture, and economy.Footnote ⁹³ Moreover, when commenting on state compliance reports, the HRC has reaffirmed the above-mentioned position, as is evidenced in its report on Mexico:

The Committee on Economic, Social and Cultural Rights (CESCR), which monitors the implementation of the ICESCR, has left “no doubt as to the connection between the integrity of indigenous lands and the status of the human rights of indigenous peoples”.Footnote ⁹⁵ In providing an authoritative interpretation of indigenous peoples’ cultural rights, as formulated in Article 15(1)(a)Footnote ⁹⁶ of the ICESCR, the CESCR states in General Comment 21:

In other words, the CESCR's interpretation understands that in order to fulfil the right to enjoy and maintain their culture, indigenous peoples must be able to participate in any decisions that would affect the integrity of their lands and resources.Footnote ⁹⁸ The CESCR reinforces their position throughout numerous periodic state reports highlighting:

And:

The Committee on the Elimination of Racial Discrimination (CERD), which monitors the implementation of the International Convention on the Elimination of All Forms of Racial DiscriminationFootnote ¹⁰¹ (ICERD), has been at the forefront of the treaty bodies in protecting indigenous land rights.Footnote ¹⁰² In General Recommendation 23, the CERD calls upon all states:

Moreover, the CERD considers that discrimination lies at the heart of indigenous peoples “losing their land and resources to colonists, commercial companies and State enterprises. Consequently, the preservation of their culture and their historical identity has been and still is jeopardized.”Footnote ¹⁰⁴ The CERD has been relentless in criticizing states for their lack of meaningful recognition of communal indigenous lands, which has resulted in an uncertainty for the future of indigenous life.Footnote ¹⁰⁵ Unfortunately, not all Southeast Asian states have signed the ICERD,Footnote ¹⁰⁶ despite the fact that the right not to be discriminated against on the basis of race constitutes a peremptory norm of international law.Footnote ¹⁰⁷

The HRC, CESCR, and CERD have produced a significant body of jurisprudence and commentary concerning the land rights of indigenous peoples, making it clear that indigenous peoples’ attachment to traditional lands and territories goes beyond typical individual property rights, which view land primarily as a unit of commerce.Footnote ¹⁰⁸ Through their interpretation of relevant international norms, the supervisory bodies have insisted that domestic legal regimes “incorporate a formulation of indigenous land rights that meaningfully protects indigenous cultures and economies”.Footnote ¹⁰⁹

D. Regional Approaches to Indigenous Peoples’ Land Rights

The Inter-American Court of Human Rights (IACtHR) and the Inter-American Commission on Human Rights (IACommHR) have interpreted the American Declaration of the Rights and Duties of ManFootnote ¹¹⁰ (American Declaration) and the American Convention on Human RightsFootnote ¹¹¹ (American Convention) in ways that have been extremely beneficial for indigenous peoples’ land rights. At a very early stage, the IACtHR and the IACommHR recognized that a “greater cultural and ideological homogeneity of a region permits agreement on a fuller list of human rights”.Footnote ¹¹² By the early 1970s, the regional human rights regime had already begun referring to the infringements upon lands traditionally held by indigenous peoples, and had already recognized the collective significance of land for indigenous peoples.Footnote ¹¹³ In 1985, the IACommHR issued its findings in the Yanomami v. Brazil Footnote ¹¹⁴ case, noting that the state, by failing to adopt necessary measures to protect the wellbeing of the Yanomami community during infrastructural and exploitation activities within their territories, violated the American Declaration.Footnote ¹¹⁵ The IACommHR recommended that the Brazilian government demarcate the boundaries of the traditional area of the Yanomami community and enact safeguards to protect their lives and wellbeing. The IACommHR, and later the IACtHR, seemed to have developed a multifaceted approach in order to protect indigenous peoples’ land rights, and to recognize the indivisibility of these approaches: on the one hand, the collective dimension of indigenous peoples’ right to cultural integrity and, on the other hand, the need to protect the right of individual members of indigenous communities to physical, mental, and social wellbeing.Footnote ¹¹⁶

In the Mayagna (Sumo) Awas Tingni Community v. Nicaragua Footnote ¹¹⁷ case, the IACtHR recognized, for the first time, the communal property rights of indigenous peoples, stating that the Community's property rights derive from their traditional use and occupancy patterns, and is independent from recognition under national laws.Footnote ¹¹⁸ The rationale provided by the IACtHR noted that the survival of indigenous peoples as a distinct culture and society hinges on the special relationship they have with their traditional lands and natural resources.Footnote ¹¹⁹ Moreover, the IACtHR provided an evolutionary interpretation of Article 21Footnote ¹²⁰ of the American Convention, stating that the terms of an international human rights treaty should be considered autonomous from domestic law, and that the interpretation of human rights norms must adapt to current conditions.Footnote ¹²¹

After the Awas Tingni Judgment there has been a slew of other positive decisions emanating from the IACtHR. For example, in Sawhoyamaxa Indigenous Community v. Paraguay,Footnote ¹²² the IACtHR found that failing to recognize indigenous peoples’ property rights based on their own law and customs in the same manner as other forms of property constitutes discrimination.Footnote ¹²³ Furthermore, according to the IACtHR, possession of land should suffice for communities to obtain official recognition of their land property, and the land property should be based on the group, not the individual.Footnote ¹²⁴ The IACtHR strengthened this assessment in the subsequent case, Yakye Axa Indigenous Community v. Paraguay.Footnote ¹²⁵

Saramaka People v. Suriname presented the IACtHR with an interesting opportunity to provide an interpretation on who “qualifies” as an indigenous community.Footnote ¹²⁶ The Saramaka case dealt with one of six distinct Maroon groups living in Suriname, an Afro-descendent community whose ancestors were African slaves forcibly taken to Suriname during European colonization in the seventeenth century.Footnote ¹²⁷ Although not fitting the narrow aboriginal pre-Colombian concept of an indigenous community, the Saramaka still claimed violations to their collective rights, most notably to property, because, over time, the Saramaka developed an ancestral link to their land and their way of life depended heavily on the traditional use of their land.Footnote ¹²⁸ In view of the evidence presented, the IACtHR considered that the Saramaka people made up a tribal community, distinct from other sections of the population, and that they had a special relationship with their ancestral land.Footnote ¹²⁹

Moreover, the IACtHR found that Suriname failed to recognize that the Saramaka people could enjoy and exercise property rights as a community.Footnote ¹³⁰ This failure resulted from the Saramaka people not qualifying as a juridical personality and were thus unable to seek judicial protections against violations of their property rights.Footnote ¹³¹ Without appropriate land titles, Suriname believed that its duty was to simply grant members of the Saramaka community the privilege to use the land, but effective control of the territory was left to the state.Footnote ¹³² The IACtHR rejected the argument, stating that a lack of a domestic legal framework designed to recognize communal property rights for the Saramaka simply meant that Suriname had the duty to establish mechanisms to give effect to such property rights.Footnote ¹³³ Furthermore, the IACtHR established safeguards to identify whether interference to land for development projects would threaten the survival of the indigenous community: first, the state must ensure effective participation in conformity with their traditions and customs; second, the state must guarantee the indigenous community share in the benefits of the development plan; and finally, an environmental assessment must be performed.Footnote ¹³⁴

More recently, in Kichwa Indigenous People of Sarayaku v. Ecuador,Footnote ¹³⁵ the IACtHR reaffirmed the state's obligation to guarantee the right to indigenous communal property, and outlined the measures required of the state to protect indigenous peoples’ land rights. The case concerned the Kichwa indigenous peoples of Sarayak, who form one of the oldest settlements of the Kichwa people in the province of Pastaza in the Ecuadorian Amazon, and the granting of a concession for oil exploration and exploitation by Ecuador, and the permission given to an Argentinean company to begin seismic exploration within the Sarayaku people's territory, without having consulted with the Sarayaku or obtaining their consent.Footnote ¹³⁶

Interestingly, unlike other cases of this nature heard before the IACtHR, there was no doubt regarding the right of the Sarayaku people to their communal property, which was recognized by the state in domestic proceedings.Footnote ¹³⁷ Instead, the Sarayaku decision focused primarily on the right to consultation, which the IACtHR sees as “one of the fundamental guarantees to ensure the participation of indigenous peoples and communities in decisions regarding measures that affect their rights and, in particular, their right to communal property …”.Footnote ¹³⁸ In order to verify whether the state conducted an appropriate and effective process that would guarantee the right to consultation of the Sarayaku people, the IACtHR reiterated the jurisprudence established in Saramaka, while slightly modifying it to include the following: the prior nature of the consultation; good faith and the aim of reaching an agreement; appropriate and accessible consultation; the environmental impact assessment; and informed consultation.Footnote ¹³⁹ Based on the evidence presented, the IACtHR concluded that the Sarayaku were not consulted by the state prior to natural resource exploration and exploitation.

In brief, Sarayaku v. Ecuador confirms the standards established in Saramaka, and provides a better understanding of the content and scope of the right to prior, free, and informed consultation as it related to indigenous peoples’ communal lands. Moreover, the IACtHR additionally emphasized that the right to consultation constitutes a general principle of international law,Footnote ¹⁴⁰ which suggests that a state may be held liable for violation of the right to consult, independent of its obligations under treaty-based provisions, similar to those found in the ILO Convention No. 169.Footnote ¹⁴¹ Seen from this angle, Sarayaku reinforces the right to consultation with indigenous communities prior to the commencement of land and resource development projects as a rule of customary international law.

In the African human rights system the two most significant cases dealing with indigenous peoples’ land rights are: The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria Footnote ¹⁴² (Ogoni) and The Centre for Minority Rights Development and Minority Rights Group International (on behalf of the Endorois Welfare Council) v. Kenya Footnote ¹⁴³ (Endorois).Footnote ¹⁴⁴

The Ogoni case was concerned with the negative impact of oil development activities on the Ogoni peoples who inhabit the areas surrounding the oil-producing Niger Delta.Footnote ¹⁴⁵ The African Commission on Human and Peoples’ Rights (African Commission) found that the Nigerian government, through its military forces and the state oil company, the Nigerian National Petroleum Company, violated the Ogoni peoples’ rights found in Article 21 of the African Charter on Human and Peoples’ Rights,Footnote ¹⁴⁶ chiefly the right of the Ogoni people to freely dispose of their wealth and natural resources.Footnote ¹⁴⁷ Although the Ogoni case was progressive at the time, it still shied away from classifying Ogoni as “peoples” and from recognizing their collective rights. The Endorois Decision, however, would use a more expansive approach.

The Endorois is a distinct Kalenjin-speaking community, who, for centuries, have been the traditional inhabitants of the Lake Bogoria area within the Rift Valley province in Kenya.Footnote ¹⁴⁸ The Endorois's traditional way of life has always consisted of allowing their animals to graze in the lowlands surrounding Lake Bogoria during the rainy season, and retreating to the Mochongoi forest for the dry season.Footnote ¹⁴⁹ The green pastures around Lake Bogoria have been vital for the health of their livestock, and the lake also remains important for religious and traditional practices of the Endorois community.Footnote ¹⁵⁰

The Endorois community continued to hold, use, and enjoy this land until 1973 when, without prior consultation or consent, the land was declared a protected area.Footnote ¹⁵¹ In 1986, the Endorois community was evicted from the fertile lowlands surrounding Lake Bogoria and displaced to semi-arid land, resulting in the death of a number of their animals and their falling into economic hardships previously unknown to them.Footnote ¹⁵² Moreover, access to Lake Bogoria for religious and cultural purposes was restricted, and even met with intimidation.Footnote ¹⁵³

In an effort to regain access to their lands, the Endorois community pursued various avenues of recourse through the domestic legal system but ultimately failed.Footnote ¹⁵⁴ The Endorois community first launched their campaign by challenging the land and natural resource regime that was adopted, unchanged, from the British colonial powers.Footnote ¹⁵⁵ Under the colonial system, land that was occupied by recognized ethnic groups was considered “Native Land Areas”.Footnote ¹⁵⁶ After independence, title to the “Native Land Areas” was transferred to the local authorities, where the county councils were “obliged to hold the land in trust for the use and benefit of the local communities”.Footnote ¹⁵⁷ Unfortunately, this form of land tenure system, in many instances, resulted in collusion between the central government and the local authorities to privatize or nationalize “Native Land Areas” with complete disregard for the local communities.Footnote ¹⁵⁸

As this was the case for the Endorois community, they submitted a complaint to the Kenyan High Court, challenging the legality of the forced evictions and the constitutionality of the denial of access to their grazing lands, and to their cultural and religious sites.Footnote ¹⁵⁹ The Kenya High Court dismissed the Endorois claim and stated very clearly that it “could not address the issue of a community's collective right to property”, nor did they believe that Kenyan law should afford “any special protection to a peoples’ land based on historical occupation and cultural rights”.Footnote ¹⁶⁰

After exhausting all domestic remedies, the Endorois community filed an individual complaint with the African Commission, claiming that the Republic of Kenya violated numerous rights, namely their right to property,Footnote ¹⁶¹ their right to culture,Footnote ¹⁶² and their right to free disposition of natural resources.Footnote ¹⁶³

In finding that the Endorois property rights had been violated, the African Commission agreed with the Awas Tingni Judgment in stating that property rights had an autonomous meaning under human rights law, and rejected the “formal” title approach that was set out in Kenyan domestic law.Footnote ¹⁶⁴ To support its findings, the African Commission referred to the Saramaka case, treating it as analogous.Footnote ¹⁶⁵ Furthermore, the African Commission found that by denying ownership and restricting access to the Lake Bogoria area, Kenya encroached upon the property rights of the Endorois community.Footnote ¹⁶⁶ This encroachment was also not tempered with appropriate and effective consultations, benefit-sharing, or environmental assessments, as described in the Saramaka case.Footnote ¹⁶⁷ Similarly, in assessing if Kenya had violated Article 21 of the African Charter, the African Commission found that instituting development projects on Endorois's traditional lands without consulting the community, in the manner outlined in Saramaka, was tantamount to violation of Article 21.Footnote ¹⁶⁸ Finally, in determining if the Endorois's cultural rights were violated by having their access to Lake Bogoria restricted and their pastoralist way of life interrupted, the African Commission concurred with the HRC's interpretation of Article 27 of the ICCPR, noting that “culture manifests itself in many forms, including a particular way of life associated with the use of land and resources”.Footnote ¹⁶⁹

E. The United Nations Declaration on the Rights of Indigenous PeoplesFootnote ¹⁷⁰

Without a doubt, the most significant contribution to the rights of indigenous peoples has been the creation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Adopted on 13 September 2007 by a vote of 143 in favour, 11 abstentions, and 4 against, the UNDRIP has been welcomed as significant progress for the protection of indigenous peoples’ rights, and more specifically, protection of their lands, territories, and natural resources. Although the drafting process “reflect[ed] an extraordinary liberal, transparent and democratic procedure that encouraged broad and unified indigenous input”, states were reluctant to include numerous provisions relating to indigenous peoples’ rights to their traditional lands, territories, and natural resources.Footnote ¹⁷¹ Most states were not prepared to accept the political and financial price in recognizing the complete and far-reaching array of land rights already afforded in international law.Footnote ¹⁷² Indigenous representatives, on the other hand, were unwilling to compromise on what they saw as an implementation gap: under international law indigenous peoples hold cultural and property rights to traditional lands, territories, and natural resources, whereas in many domestic legal systems property rights are based on stationary land use common to non-indigenous populations, and do not recognize the fluctuating use of land common in many indigenous cultures.Footnote ¹⁷³ Although states and indigenous representatives began with different points of departure, resulting in tense negotiations, the following provisions relating to traditional lands, territories, and natural resources were included in the UNDRIP:

Although many states have been quick to downplay the significance of the UNDRIP by pointing to its non-legally binding character, legal scholars have considered the UNDRIP declaratory of international law or an “authoritative statement of norms concerning indigenous peoples on the basis of generally applicable human rights principles”.Footnote ¹⁷⁴ If one analyzes all the provisions of the UNDRIP against the backdrop of existing and established international law, one could easily come to the conclusion that the UNDRIP simply “clarifies and confirms rights that are already formally legally binding and applicable to indigenous peoples”.Footnote ¹⁷⁵ As James Anaya, the United Nations Special Rapporteur on the Rights of Indigenous Peoples, explained:

A. Cambodia

The population of Cambodia, a country bordering Thailand, the Lao People's Democratic Republic, and Vietnam, is fairly ethnically homogenous with roughly 90 percent of the population identifying as Khmers. Indigenous peoples in Cambodia, mainly considered to be highlanders, have an unknown population but are estimated at around 1.34 percent of the population according to the 2008 census.Footnote ²²³Chuncheat doaem oheak tech or sahakom chuncheat daoem oheat tech, literally meaning “minority original ethnicity”, is the term officially used by the government of Cambodia to describe all indigenous peoples or indigenous communities in the country.Footnote ²²⁴ However, identifying indigenous communities has proven to be an arduous task as they have been subject to immense trauma over recent decades. After independence in 1954, government policies were designed to “integrate” indigenous peoples into mainstream Khmer society, resulting in the forced displacement of numerous communities, the expropriation of traditional lands and villages, and the implementation of assimilationist educational models designed to transform their “backward” social systems.Footnote ²²⁵ Livelihoods were also threatened for indigenous peoples in northeast Cambodia during the second Indochina War, and the installation of the Khmer Rouge saw even more relocation and resettlement programmes, launched in an effort to encourage wet rice cultivation.Footnote ²²⁶ After the defeat of the Khmer Rouge, lowland Khmers were pushed to settle in less populated areas, and commercially beneficial large-scale resource practices were implemented, which led to large tracts of land under the traditional control of indigenous communities being given away as concessions to individuals or commercial companies for industrial logging, plantations, commercial farming, and mining.Footnote ²²⁷

At the state level, two agencies exist for the protection of indigenous peoples: the Department of Ethnic Minority Development and the Inter-Ministerial Committee for Highland Peoples Development (consisting of representatives from the Ministry of Rural Development; the Ministry of Agriculture, Forestry and Fisheries; the Ministry of Education, Youth and Sport; the Ministry of Health; the Ministry of Public Works and Transport; the Ministry of Social Affairs, Labours, Vocational Training and Youth Rehabilitation; the Ministry of Women's and Veterans’ Affairs; the Ministry of Environment; and, the Cambodian Mines Action Centre).Footnote ²²⁸

In terms of domestic law affecting indigenous peoples, there is the Constitution of the Kingdom of CambodiaFootnote ²²⁹ and the Land Law (2001), which “provided a state sanctioned recognition, the first in Cambodia, of the concept of indigenous peoples, and the special land rights conveyed to them under the law”.Footnote ²³⁰ Relevant provisions in the Land Law (2001) include:

Recent policy initiatives undertaken by the Cambodian government include: the National Policy on Development of Indigenous Minorities (2009), the Policy on Registration and Right to Use of Land of Indigenous Communities in Cambodia (2009), and the Sub-Decree on Procedures of Registration of Land of Indigenous Communities (2009).Footnote ²³¹ With regard to the Sub-Decree on Procedures of Registration of Land of Indigenous Communities, indigenous peoples can be granted a communal land title after registering with the Ministry of the Interior and after the Ministry of Rural Development has identified them as an indigenous community.Footnote ²³² In 2010, the first collective title was granted to an indigenous community, and progress on others, although likely, remains to be seen.Footnote ²³³

While the progress made should be applauded, certain shortcomings in the domestic laws should not be overlooked: the paternalistic tone where indigenous rights are granted as opposed to recognized; the restriction of control over lands where indigenous peoples are not permitted to freely dispose of lands that are collectively owned; and the establishment of individual ownership of certain portions of community lands under the assumption that members of indigenous groups will eventually evolve, develop, and integrate or want to be relieved from the constraints of the group.Footnote ²³⁴ In addition, the protection of indigenous peoples’ traditional lands is still vastly inadequate, and the devastating impact of land grabbing continues.Footnote ²³⁵ Without any prior meaningful consultation, and without any free, prior, and informed consent given, the Cambodian government continues to grant large numbers of land concessions for: rubber, pine trees, and corn plantations; natural resource extraction; hydroelectric dams; construction of roads; and tourist sites.Footnote ²³⁶ Moreover, the Cambodian government has continued to push the development of large hydropower dams inside Cambodia, projects which will inevitably affect indigenous communities disproportionately.Footnote ²³⁷ The dire situation has resulted in the finding by the United Nations Cambodia Office of the High Commissioner for Human Rights that “the alienation of indigenous land through grant of concessions is undermining the ability of indigenous communities to register their collective ownership of traditional lands, and enforce their rights to land under the Land Law”.Footnote ²³⁸

B. The Philippines

The Philippines comprises over 7,000 islands and islets, spanning over 1,800 kilometres from north to south.Footnote ²³⁹ With a projected population of over ninety-four million, indigenous peoples are estimated to comprise approximately ten percent, although no accurate comprehensive count has been completed since 1916.Footnote ²⁴⁰ Indigenous peoples in the Philippines generally live in geographically isolated areas which lack basic services, but which are rich with commercially valuable natural resources.Footnote ²⁴¹ Indigenous groups on the northern mountains of Luzon (Cordillera) are collectively called Igorot, groups on the southern island of Mindanao are collectively called Lumad, smaller groups are collectively called Mangyan in the central islands, and there are even smaller groups in the central islands of Luzon.Footnote ²⁴²

The undermining of indigenous peoples’ land rights in the Philippines began while the country was under Spanish colonial rule, where it was declared, under the Regalian Doctrine, that the Crown of Spain owned all lands.Footnote ²⁴³ Although opportunities to acquire titles to lands appeared at various times, many indigenous peoples did not benefit from this, and untitled lands were deemed forfeited to the King of Spain.Footnote ²⁴⁴ The colonial administrators from the US, later the self-governed Commonwealth of the Philippines, and even the newly formed government after independence in 1946, retained the Regalian Doctrine but also implemented new forms of legal justification for centralizing and controlling the islands’ natural resources.Footnote ²⁴⁵ While it is beyond the scope of this paper to list in detail all of the colonial and post-colonial land legislation affecting indigenous peoples, a couple of examples will be given to illustrate the breadth of the state's attempts to refute the existence of indigenous peoples’ land rights: The Land Registration Act No. 496 of 1902, which declared all land subject to formal registration of land title with issuing power in the hands of the state; The Philippine Commission Act No. 178 of 1903, which ordered untitled lands to become public domain with only the state allowed to classify or exploit such land; The Mining Law of 1905, which gave the state power to acquire public land for mining purposes; The Public Land Acts of 1913, 1919, and 1925, which opened lands the state deemed as unoccupied, unreserved, or otherwise unappropriated public lands to settlers or corporations; Proclamation No. 217 of 1929, which declared the majority of the Cordillera as a forest reserve; the 1935 Constitution of the Commonwealth of the Philippines, which stated that all natural resources on public lands belonged to the state, and their disposition, exploitation, development, or utilization shall be limited to citizens of the Philippines or corporations of which the majority capital belongs to a citizen of the Philippines; and the Revised Forestry Code of 1975, which declared that all lands having a slope of eighteen degrees or more as non-disposable for settlement or agricultural purposes and automatically belonging to the state, classified as public forest land.Footnote ²⁴⁶

The different perceptions on land ownership and land management between the state and the indigenous peoples in the Philippines have resulted in a massive land grab, with the formal registration of land title being used as “a tool to convert communal ancestral lands into individually titled private lands”.Footnote ²⁴⁷ Throughout many different periods in the history of the Philippines, indigenous communities have been forcefully displaced and relocated, besieged by an ever-growing number of corporations engaged in exploitation, in the interest of a foreign-dominated, export-oriented, national economy.Footnote ²⁴⁸ Hope for diminished conflict between state land laws and customary land laws seemed to grow with the approval and implementation of two important pieces of legislation: the 1987 Constitution of the Republic of the PhilippinesFootnote ²⁴⁹ (the Constitution) and the Indigenous Peoples’ Rights Act of 1997Footnote ²⁵⁰ (IPRA). The Constitution has several relevant provisions for indigenous peoples, including: recognizing and protecting the rights of indigenous peoples;Footnote ²⁵¹ protecting the rights of indigenous cultural communities to their ancestral land;Footnote ²⁵² recognizing customary laws governing property rights or relations in determining the ownership and extent of ancestral land;Footnote ²⁵³ and recognizing and guaranteeing the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions.Footnote ²⁵⁴ The IPRA, which echoes the constitutional provisions governing indigenous peoples’ rights, also includes provisions to guarantee social justice and human rights, to recognize and protect cultural integrity, and to recognize the inherent right of indigenous peoples to self-governance and self-determination.Footnote ²⁵⁵ The IPRA also provided for the creation of the National Commission on Indigenous Peoples (NCIP), which comprises indigenous peoples from a variety of regions, tasked with implementing the IPRA and developing a Medium Term Philippine Development Plan for Indigenous Peoples.Footnote ²⁵⁶

Although the IPRA has been recognized as one of the world's most far-reaching laws specifically addressing indigenous peoples’ rights, after having been in existence for over ten years many criticisms have been laid upon the IPRA and its implementing agency, the NCIP.Footnote ²⁵⁷ The main criticism lies in the poor implementation efforts as the government has yet to allocate sufficient funds to provide a comprehensive plan of application, or to establish effective mechanisms to monitor and review the newly established system.Footnote ²⁵⁸ Moreover, the IPRA seems to conflict with existing laws, such as the Philippine Mining Act of 1995.Footnote ²⁵⁹ The Philippine Mining Act of 1995 facilitates the entry of foreign and local mining corporations, gives permission to mining firms to engage in exploratory missions, and entrenches existing mining operations in ancestral lands of the indigenous communities.Footnote ²⁶⁰ The lack of institutional strength of the NCIP to intervene in such cases has left the agency vulnerable to criticism of bowing to the interests of the business or the government.Footnote ²⁶¹ Disappointment with the NCIP can be seen more clearly if one considers the procedures for obtaining a Certificate of Ancestral Domain Title, where “the legal recognition of ancestral domains and land titles has been a slow and cumbersome process, full of pitfalls and ambiguities, which often drive indigenous communities to despair of the usefulness of IPRA as an effective legal instrument”.Footnote ²⁶² As former Special Rapporteur Rodolfo Stavenhagen explains:

C. Malaysia

Malaysia is a federation of thirteen states, with the country consisting of two geographical areas divided by the South China Sea: Peninsular Malaysia and Malaysian Borneo. The latter consists of the states of Sabah and Sarawak. The total population of Malaysia is approximately 28.6 million people, with indigenous peoples representing twelve percent of the population.Footnote ²⁶⁴ The Orang Asli is the indigenous people of Peninsular Malaysia and consists of three groups: Negrito (Semang), Senoi, and Aboriginal-Malay. In Sarawak, the indigenous peoples are collectively called Orang Ulu or Dayak, divided into eleven groups, and constituting around fifty percent of Sarawak's population.Footnote ²⁶⁵ In Sabah, there are thirty-nine different indigenous ethnic groups which account for forty-seven percent of the total population on Sabah.Footnote ²⁶⁶

The citizenship model in Malaysia presents an interesting case of multiculturalism, where the group-differentiated rights model distributes Malays, Chinese, Indians, and other ethnic minorities in an unambiguously asymmetrical fashion.Footnote ²⁶⁷ Ethnic Malays, which include natives of Sabah, Sarawak, and the Orang Asli, are awarded special position and privileges, as they were the “first to land”, as opposed to the Chinese or Indians who immigrated in the late nineteenth and early twentieth centuries.Footnote ²⁶⁸ As Article 153(1) of the 1957 Federal Constitution of Malaysia states: “It shall be the responsibility of the Yang Di-Pertuan Agong [King of Malaysia] to safeguard the special position of the Malays and natives of any of the States of Sabah and Sarawak.”Footnote ²⁶⁹ Therefore, all ethnic Malays, or Bumiputera, translated as “prince of the soil”, should be able to benefit from the privileges awarded to this group, whether in employment, economic opportunities, or protection of culture and traditions.Footnote ²⁷⁰

However, the Orang Asli have historically been discriminated against and marginalized as their demand for rights, particularly land rights, as indigenous peoples seems to come into conflict with the privileged position of the ethnic Malays, as set out in the Malaysia Constitution.Footnote ²⁷¹ Moreover, the relations between the Malaysian state and the Orang Asli have been characterized by attempts to assimilate the latter into the former.Footnote ²⁷² As official policy in 1961 stated, and which remains binding and applicable today: “… every effort will be made to encourage the developed groups to adopt a settled way of life and thus to bring them economically into line with other communities in this country.”Footnote ²⁷³

The differential treatment of the Orang Asli stems from the Aboriginal Act, which still governs most aspects of their lives to this day.Footnote ²⁷⁴ The Aboriginal Act rests primarily on views of British field ethnographer H.D. Noone, who viewed the Orang Asli community as simple primitives, or noble savages, who required protection from the state out of fear that they would be susceptible to exploitation through cultural contact, but also through other activities, such as mining and logging.Footnote ²⁷⁵ Thus, as provisioned by the Aboriginal Act, the Department of Orang Asli Affairs was created to control numerous components of the Orang Asli community's daily lives, from land, education, healthcare, and housing, to who can be considered as “Aboriginal”.Footnote ²⁷⁶

In addition to the Aboriginal Act, the National Land Code of 1965 awarded all land to the state, and private land interests were dependent upon individuals registering their land in the land registry.Footnote ²⁷⁷ Orang Asli lands, passed down from generation to generation as dictated by tradition, fell outside the purview of Malaysia's land registration system and remained the property of the state.Footnote ²⁷⁸ Moreover, due to the Orang Asli community's land being “undeclared”, coupled with the absence of mechanisms to track the ancestral land of the Orang Asli community, their land had been continuously given to private developers by the Malaysian state.Footnote ²⁷⁹ The Orang Asli effectively became wards of the state, where Malaysia is the trustee of the community and their traditional land: the Orang Asli were said to be living on Aboriginal Areas and Reserves, and as this land had no registered titles it belonged to the state.Footnote ²⁸⁰

However, a success of sorts came in the groundbreaking decision of the Sagong Tasi & Ors v. Kerajaan Negeri Selangor & Ors Footnote ²⁸¹ (“Sagong Tasi”), when the state recognized the existence of Orang Asli land titles and required the Malaysian state to fulfil certain duties and obligations when acquiring Orang Asli land.Footnote ²⁸² In Sagong Tasi, members of the Orang Asli Temuan tribe were ordered by state authorities to vacate their homes, which rested on a gazetted Aboriginal Reserve, in order for the Malaysian state to begin construction of a new highway to Kuala Lumpur Airport.Footnote ²⁸³ The inhabitants were given compensation for their homes but not for their lands, as the state considered compensation for land only legally necessary when acquiring private land.Footnote ²⁸⁴ As the homes of the plaintiffs rested on an Aboriginal Reserve, the state believed the land belonged to it. In the judgment for the plaintiffs, the Selangor High Court believed that the Orang Asli held a “form of native title” to the land in question, based on the Orang Asli's exclusive and continual occupation of their ancestral land since time immemorial, and therefore the Malaysian state must provide compensation for the acquired land.Footnote ²⁸⁵

While the Sagong Tasi can be considered a success, given that the Orang Asli's land rights were recognized based on continuous occupancy, one must remain cautious for a number of reasons. First, in determining valuation for the acquired land, the Selangor High Court used the same regulations applying to private registered land, in effect equating native title and private title, both seen as commercial goods.Footnote ²⁸⁶ Second, while the High Court recognized the need to ensure that the application of domestic laws with regard to aboriginal rights adheres to the worldwide recognition of these rights,Footnote ²⁸⁷ the judgment is not consistent with international practice as it did not address the Orang Asli as a legally distinct group, nor did it address the special linkages between indigenous peoples and their ancestral lands.Footnote ²⁸⁸

Moreover, recent developments demonstrate that the Orang Asli have good reasons to proceed cautiously. The new Orang Asli Land Policy, which moved ahead without any prior consultation or consent, nullifies the aboriginal areas that have been gazetted or that are under application to be gazetted.Footnote ²⁸⁹ Keeping in line with the Sagong Tasi Decision, aboriginal areas belong to the Orang Asli under native title, meaning that the Orang Asli will lose rights to approximately 57,000 hectares of land.Footnote ²⁹⁰ Moreover, under the Orang Asli Land Policy, titles will only be given to individuals, and for the first fifteen years the title will be tied to a corporation and the titleholders will be obliged to develop the land with oil palm or rubber.Footnote ²⁹¹ Finally, the new policy states that for the individual members of the Orang Asli community who accept individual title, they will not be permitted to make any legal claims to communal areas.Footnote ²⁹²

In the states of Sabah and Sarawak, recognition of indigenous peoples (called “natives”) is enshrined in the Federal Constitution of Malaysia 1957, which defines “natives” in Article 161(A) as:

Moreover, the Federal Constitution of Malaysia of 1957 also recognizes and protects the customary land rights of the indigenous communities of Sabah and Sarawak.Footnote ²⁹³ In relation to these provisions, Sabah and Sarawak have a number of state laws relating specifically to indigenous peoples, such as the Native Court Enactment 1992, which recognizes legal pluralism and the indigenous juridical system, and the Land Ordinance 1930, which defines native customary tenure rights.Footnote ²⁹⁴

However, disputes remain over the definition and extent of native customary rights, and there have been poor efforts to implement native customary rights to land.Footnote ²⁹⁵ Despite legal victories recognizing the native customary right to land,Footnote ²⁹⁶ the state has been able to alienate large tracts of land, making room for logging exercises, commercial mono-crop plantations, hydroelectric dams, and other development projects.Footnote ²⁹⁷ In Sarawak, amendments to land codes have made it more difficult for the indigenous peoples to protect their ancestral land; one such amendment empowered state officials to extinguish native customary rights to all land.Footnote ²⁹⁸ Another amendment restricted land claims to farmland, burial grounds, and shrines, excluding claims to ancestral communities, territories, and communal forest areas.Footnote ²⁹⁹ In Sabah, amendments to promote communal land titles have instead attached conditions to the issuing of such titles to include the requirement of the communities to develop mono-crop plantations through joint ventures with the state or private companies.Footnote ³⁰⁰ The immense power that the Sabah and Sarawak governments hold over all facets of native customary rights leaves the rights of indigenous peoples to their traditional lands, territories, and resources on very insecure and unstable grounds.Footnote ³⁰¹