Indigenous Peoples' Land Rights Under International Law: From Victims to Actors is a welcome addition to the ever-growing literature on indigenous peoples' rights under international law. Gilbert admirably achieves his main goal ‘to provide a comprehensive understanding of the international law approach to indigenous peoples’ land rights' (xiii). Gilbert's passion for his subject is palpable and illuminates every page, as do his zeal to expose international law's complicity in indigenous peoples' loss of their territories and tentative hope that international law might now provide some protection of indigenous peoples' lands. The choice of topic is also to be applauded. There are few texts that examine indigenous peoples' land rights in such depth.Footnote ¹ Further, land rights are immeasurably important to indigenous peoples and, simultaneously, pose some of the most difficult questions for States when faced with claims to extensive areas of land.

Gilbert maps three principal shifts in international law's treatment of indigenous peoples' land rights: from a period of ‘dispossession’, to one of protection and reparation and, finally, to the current era, in which indigenous peoples negotiate their land rights with States. Following these three distinct periods in international law's engagement with indigenous peoples, the book is broken up into three parts, each with two chapters. The first part, entitled ‘Indigenous Peoples as Victims: Theories of Dispossession’, provides an historical account of the ways in which international legal doctrines functioned to sanction the assertion of colonial power over indigenous peoples and their territories. The focus in Chapter One is on the ‘means of acquisition’ and it sets out ways in which States acquired indigenous peoples' territories through the discriminatory application or non-application, depending on the colonial State's political imperatives, of doctrines of conquest, continuity, terra nullius, occupation, uti possedetis and so on. Chapter Two examines the ‘means of extinguishment’ of indigenous peoples' territorial rights, where such rights might have continued, by treaty and domestic law.

In Part Two Gilbert examines the ways in which international human rights law now provides some protection of indigenous peoples' land rights and, also, redress for unlawful takings of indigenous peoples' lands. As a result, he argues, indigenous peoples have become subjects of international law. Chapter Three studies the protection of indigenous peoples' land rights through a ‘proprietary right’ and then a ‘cultural right’ lens, illustrating how jurisprudence on the rights to property and culture has evolved such that it now provides some protection of indigenous peoples' collective property rights. More emphasis might have been placed on the role played by the right to equality, or indeed other rights such as self-determination, in this regard. The right to freedom from discrimination has been interpreted to require that States do not negatively differentiate in their treatment of indigenous peoples' conceptions of property and non-indigenous property.Footnote ² Similarly, while covered, more could have been said about States' reluctance to recognize indigenous peoples' rights to traditionally owned territories that are now out of indigenous peoples' control, a problematique that is reflected in the UN Declaration on the Rights of Indigenous Peoples.Footnote ³ The analysis of the right to culture is nuanced with an interesting conceptualization of indigenous peoples' land rights as subsistence rights.

Chapter Four examines: when a right to remedies arises in international law; the remedies required under international law to provide redress for takings of indigenous peoples' lands, which include restitution and, only if that is not possible, compensation; domestic attempts to provide redress; and, finally, special measures that impose obligations on States to protect and demarcate indigenous peoples' lands. In relation to the last section, one might wonder whether the term ‘special measures’ is an appropriate description of such duties given that they are not ‘temporary’ in nature, as ‘special measures’ usually are. Instead, they could perhaps be more appropriately described as emerging indigenous peoples' rights norms, a separate subject of international law in its own right.

In Part Three, Gilbert illustrates that indigenous peoples are now actors in international law as we have entered ‘that age of negotiation between States and indigenous peoples’ (p 195). The foundation for Gilbert's argument is that international human rights law increasingly recognizes that ‘minorities and indigenous peoples should have more control in the conduct of their own affairs’ (p 195). He relies on indigenous peoples' rights to self-determination and autonomy in Chapter Five and then on the influence of human rights in contemporary agreements between States and indigenous peoples in Chapter Six. While drawing on existing scholarship, international instruments and jurisprudence, one is still left questioning how secure indigenous peoples' rights to participation and consent are, as a matter of international law. Certainly, some scepticism about the exact content of indigenous peoples' rights to self-determination and autonomy remains, as Gilbert accepts, and it is unclear whether international human rights law always provides the framework for negotiations on indigenous peoples' land rights as a matter of fact.Footnote ⁴

Not all in Gilbert's book is new. Others have also mapped the shifts in the ways international law has treated indigenous peoples and their rights more generally, albeit not exclusively through the land-rights lens.Footnote ⁵ However, Gilbert's book adds to the existing literature in that his argument is well argued and draws on international and domestic legal developments. Some sections cover well-trodden ground, such as the historically focused Chapter One.Footnote ⁶ Nonetheless, Gilbert's summary provides necessary context. Other parts of the book may have been assisted by closer attention to other work in this area, such as to Karen Knop's Diversity and Self-Determination in International Law, which closely examines increased indigenous peoples' participation in the making international law—not unlike the third and final part of Gilbert's book.Footnote ⁷

The scope of Gilbert's research is ambitious, impressive and reflected in his extensive bibliography. While the title suggests that his focus is on international law, a better description might be indigenous peoples' land rights in law globally, as a good deal of his focus is on domestic legal developments in selected States and their relationship to international legal movements. It may be that the broad coverage, and the desire to illustrate common trends in the law on indigenous peoples' land rights, obscures significant differences between jurisdictions' treatment of indigenous peoples land rights. For example, Chapter Two focuses on the common law in former colonies of the United Kingdom but suggests that such doctrines had broader application. Similarly, Gilbert makes much of the synergies between the aboriginal title doctrine in Australia and Canada when much distinguishes them in fact, not least because Canada, unlike Australia, provides constitutional recognition of aboriginal rights. In addition, one is left with the impression that all common law legal doctrine operated similarly in different jurisdictions when that was not always the case. However, these are but minor gripes, as Gilbert is of course correct in noting the shared origins and commonalities in the development of aboriginal title doctrine, and the impact they have had on contemporary recognition of indigenous peoples' land rights.

Finally, the impression left by this book is a little too neat. Certainly, not all indigenous peoples are living in the ‘era of negotiation’, and where they are, criticisms have been made of State control over those negotiations.Footnote ⁸ Other indigenous peoples are yet to tangibly benefit from increased international legal protection of their rights. However, these may simply be problems associated with the implementation of indigenous peoples' rights rather than the content of international law itself.Footnote ⁹

Overall, Indigenous Peoples' Land Rights Under International Law: From Victims to Actors makes an important contribution to the literature on indigenous peoples' rights under international law. This is especially true because, before the publication of this book, there were few texts that dealt exclusively with the important subject of land rights, and certainly none with the depth of research and sustained argument as Gilbert provides here.