Indigenous Land Ownership and Title in Canada: Implications for a Northern Corridor

How to assess the issue of indigenous land rights in the face of man-m⁠a⁠d⁠e climate change and Amazon fires? How to classify the EU free trade agreement „Mercosur“ and relevant climate, environmental and indigenous rights? What are legal opportunities for indigenous people(s) on the international, inter-American and EU level, to prevent the loss of land and forests, and to protect themselves from climate change? On the basis of indigenous land and environmental rights in Brazil and reactions to the Amazon fires, environmental regulations of the "Mercosur Pact" as well as concerned human and indigenous rights are discussed. Further, this article deals with relevant inter-American law (individual indigenous land rights) and international law (collective land rights). Environmental and climate law provide legal and political options for indigenous people(s), for instance in Brasil. Negative impacts of climate actions on indigenous peoples, the competition between environmental protection areas and indigenous territories, the inclusion of indigenous knowledge in sustainable environmental protection and the allocation of Global Public Goods are discussed. There are various interactions between climate and biodiversity protection, human rights, indigenous peoples rights, and free trade between the EU and South America. While protecting forests as a carbon sink, negative environmental or social consequences must be avoided. Like trade agreements, environmental standards for the protection of the Brazilian Amazon rain forest should be enforceable. To reduce deforestation and to confine the effects of climate change, indigenous peoples rights have to be strengthened. The free, prior, and informed consent of indigenous peoples to projects that may affect their territories is essential. It requires effective, coordinated solutions to protect human rights and indigenous land rights, and it needs a sustainable preservation of climate and forests - nationally and internationally. A collapse of the Amazon forest ecosystem would have global climate effects. In Brazil, alternatives to deforestation and destruction are: strengthening the rule of law and agro-ecology, and to defend indigenous territories.

As expert analysis concentrates on indigenous rights instruments, particularly the long fought for 2007 UN Declaration on the Rights of Indigenous Peoples, a body of jurisprudence over indigenous land and resources parallels specialized standard-setting under general human rights treaties. The aim of the present article is to provide a practical and comparative perspective on indigenous land rights based on the process of jurisprudential articulation under such treaties, principally in the Inter-American and African contexts. While specialized standards inevitably generate a view of such rights (and, indeed, indigenous rights more generally) as a set of entitlements separate from general human rights, judicial and quasi-judicial practice as it exists or is being developed within regional and global human rights systems is effectively shaping up their content and meaning. I argue that indigenous land rights jurisprudence reflects a distinctive type of human rights discourse, which is an indispensable point of reference to vest indigenous land issues with greater legal significance. From a practical standpoint, focussing on human rights judicial and quasi-judicial action to expand existing treaty-based regimes and promote constructive partnerships with national courts, though not a panacea to all the intricacies of indigenous rights, does appear to offer a more realistic alternative to advocacy strategies primarily based on universally binding principles (at least at this stage) or the disengagement of domestic systems from international (human rights) law.

This article analyses the impact of covid-19 on the rights of indigenous peoples, particularly in Brazil. It deals with the current situation of the Brazilian indigenous peoples, the impacts of the pandemic, the rights created on the adoption of protective sanitary measures for indigenous people and land rights in Brazil. Does the Brazilian government comply with international law, with constitutional rights of indigenous peoples in the current covid-19 crisis, particularly with the Brazilian Supreme Court decision on the adoption of protective sanitary measures for indigenous people? With a focus on the 2020 Report of the Special Rapporteur on the Rights of Indigenous Peoples, this paper will identify and examine the gaps in protection of the indigenous peoples rights by reason of the impact of the covid-19 crisis. This paper argues that the crisis is misused as an occasion for land invasions, deforestation, forest fires and the denial of basic indigenous rights. Especially in Brazil, a transformative change, an emergency support for indigenous peoples, and a still stand agreement on logging and extractive industries operating next to indigenous communities are needed. Brazilian ngo statements give guidelines as to how to manage the threats of the present pandemic on indigenous peoples of Brazil. The Inter-American Commission on Human Rights, the United Nations and the International Labour Organisation all offer further relevant suggestions as to how to address the serious impacts in the response to and the aftermath of this crisis.

Australia in Maps is a compilation of cartography taken from the collection of over 600,000 maps held at the Australian National Library. Included in this collection are military maps, coastal maps and modern-day maps for tourists. The map of the eastern coast of ‘New Holland’ drawn by James Cook when he ‘discovered’ Australia in 1770 is included. Also published is Eddie Koiki Mabo’s map drawn on a hole-punched piece of paper showing traditional land holdings in the Murray Islands in the Torres Strait. This map became a key document in Eddie Mabo’s fight for native title recognition, a fight which became the precursor to native title rights as they are known today. The inclusion of these two drawings in a collection of maps defining Australia as a country illustrates the dichotomies and contradictions which exist in a colonial nation. It is now fifteen years since the Native Title Act 1994 (Commonwealth) was developed in response to the Mabo cases in order to recognise Indigenous customary law and traditional relationships to the land over certain (restricted) parts of Australia. It is 220 years since the First Fleet arrived and Indigenous land was (and remains) illegally possessed through the process of colonisation (Moreton-Robinson Australia). Questions surrounding ‘country’ – who owns it, has rights to use it, to live on it, to develop or protect it – are still contested and contentious today. In part, this contention arises out of the radically different conceptions of ‘country’ held by, in its simplest sense, Indigenous nations and colonisers. For Indigenous Australians the land has a spiritual significance that I, as a non-Indigenous person, cannot properly understand as a result of the different ways in which relationships to land are made available. The ways of understanding the world through which my identity as a non-Indigenous person are made intelligible, by contrast, see ‘country’ as there to be ‘developed’ and exploited. Within colonial logic, discourses of development and the productive use of resources function as what Wetherell and Potter term “rhetorically self-sufficient” in that they are principles which are considered to be beyond question (177). As Vincent Tucker states; “The myth of development is elevated to the status of natural law, objective reality and evolutionary necessity. In the process all other world views are devalued and dismissed as ‘primitive’, ‘backward’, ‘irrational’ or ‘naïve’” (1). It was this precise way of thinking which was able to justify colonisation in the first place. Australia was seen as terra nullius; an empty and un-developed land not recognized as inhabited. Indigenous people were incorrectly perceived as individuals who did not use the land in an efficient manner, rather than as individual nations who engaged with the land in ways that were not intelligible to the colonial eye. This paper considers the tensions inherent in definitions of ‘country’ and the way these tensions are played out through native title claims as white, colonial Australia attempts to recognise (and limit) Indigenous rights to land. It examines such tensions as they appear in the media as an example of how native title issues are made intelligible to the non-Indigenous general public who may otherwise have little knowledge or experience of native title issues. It has been well-documented that the news media play an important role in further disseminating those discourses which dominate in a society, and therefore frequently supports the interests of those in positions of power (Fowler; Hall et. al.). As Stuart Hall argues, this means that the media often reproduces a conservative status quo which in many cases is simply reflective of the positions held by other powerful institutions in society, in this case government, and mining and other commercial interests. This has been found to be the case in past analysis of media coverage of native title, such as work completed by Meadows (which found that media coverage of native title issues focused largely on non-Indigenous perspectives) and Hartley and McKee (who found that media coverage of native title negotiations frequently focused on bureaucratic issues rather than the rights of Indigenous peoples to oppose ‘developments’ on their land). This paper aims to build on this work, and to map the way in which native title, an ongoing issue for many Indigenous groups, figures in a mainstream newspaper at a time when there has not been much mainstream public interest in the process. In order to do this, this paper considered articles which appeared in Australia’s only national newspaper – The Australian – over the six months preceding the start of July 2008. Several main themes ran through these articles, examples of which are provided in the relevant sections. These included: economic interests in native title issues, discourses of white ownership and control of the land, and rhetorical devices which reinforced the battle-like nature of native title negotiations rather than emphasised the rights of Indigenous Australians to their lands. Native Title: Some Definitions and Some Problems The concept of native title itself can be a difficult one to grasp and therefore a brief definition is called for here. According to the National Native Title Tribunal (NNTT) website (www.nntt.gov.au), native title is the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs. The native title rights and interests held by particular Indigenous people will depend on both their traditional laws and customs and what interests are held by others in the area concerned. Generally speaking, native title must give way to the rights held by others. Native title is therefore recognised as existing on the basis of certain laws and customs which have been maintained over an area of land despite the disruption caused by colonisation. As such, if native title is to be recognised over an area of country, Indigenous communities have to argue that their cultures and connection with the land have survived colonisation. As the Maori Land Court Chief Judge Joe Williams argues: In Australia the surviving title approach […] requires the Indigenous community to prove in a court or tribunal that colonisation caused them no material injury. This is necessary because, the greater the injury, the smaller the surviving bundle of rights. Communities who were forced off their land lose it. Those whose traditions and languages were beaten out of them at state sponsored mission schools lose all of the resources owned within the matrix of that language and those traditions. This is a perverse result. In reality, of course, colonisation was the greatest calamity in the history of these people on this land. Surviving title asks aboriginal people to pretend that it was not. To prove in court that colonisation caused them no material injury. Communities who were forced off their land are the same communities who are more likely to lose it. As found in previous research (Meadows), these inherent difficulties of the native title process were widely overlooked in recent media reports of native title issues published in The Australian. Due to recent suggestions made by Indigenous Affairs Minister Jenny Macklin for changes to be made to the native title system, The Australian did include reports on the need to ensure that traditional owners share the economic profits of the mining boom. This was seen in an article by Karvelas and Murphy entitled “Labor to Overhaul Native Title Law”. The article states that: Fifteen years after the passage of the historic Mabo legislation, the Rudd Government has flagged sweeping changes to native title to ensure the benefits of the mining boom flow to Aboriginal communities and are not locked up in trusts or frittered away. Indigenous Affairs Minister Jenny Macklin, delivering the third annual Eddie Mabo Lecture in Townsville, said yesterday that native title legislation was too complex and had failed to deliver money to remote Aboriginal communities, despite lucrative agreements with mining companies. (1) Whilst this passage appears supportive of Indigenous Australians in that it argues for their right to share in economic gains made through ‘developments’ on their country, the use of phrases such as ‘frittered away’ imply that Indigenous Australians have made poor use of their ‘lucrative agreements’, and therefore require further intervention in their lives in order to better manage their financial situations. Such an argument further implies that the fact that many remote Indigenous communities continue to live in poverty is the fault of Indigenous Australians’ mismanagement of funds from native title agreements rather than from governmental neglect, thereby locating the blame once more in the hands of Indigenous people rather than in a colonial system of dispossession and regulation. Whilst the extract does continue to state that native title legislation is too complex and has ‘failed to deliver money to remote Aboriginal communities’, the article does not go on to consider other areas in which native title is failing Indigenous people, such as reporting the protection of sacred and ceremonial sites, and provisions for Indigenous peoples to be consulted about developments on their land to which they may be opposed. Whilst native title agreements with companies may contain provisions for these issues, it is rare that there is any regulation for whether or not these provisions are met after an agreement is made (Faircheallaigh). These issues almost never appeared in the media which instead focused on the economic benefits (or lack thereof) stemming from the land rather than the sovereign rights of traditional owners to their country. There are many other difficulties inherent in the native title legislation for Indigenous peoples.

This study aims to examine the recognition of Indigenous land rights in Indonesia, the challenges faced in their implementation, and provide policy recommendations to strengthen the protection of Indigenous rights in the land sector. Although Indonesia already has regulations that recognize indigenous peoples ' rights, such as the 1945 Constitution and various sectoral laws, implementation of recognition of Indigenous land rights is often hampered by regulatory overlap and conflicts of interest between the forestry, plantation, and mining sectors. In addition, the role of indigenous peoples in policy making is still limited. This study identifies the gap between regulation and field reality, as well as analyzing the social, economic, and environmental implications of the recognition of Indigenous land rights. The results showed the importance of harmonizing regulations, increasing the participation of indigenous peoples, and accelerating the certification of indigenous lands to increase legal certainty. This study suggests multi-stakeholder collaboration as a strategic step to strengthen the position of indigenous peoples in the management of their lands and Natural Resources.

The Return of the Native

Modeling indigenous tribes’ land rights with ISO 19152 LADM: A case from Brazil

This article examines the use of literary genre in Supreme Court of Canada (SCC) decisions on Indigenous land rights (Aboriginal title) and in Métis playwright Marie Clements’ 2003 play Burning Vision. I argue that legal decisions on Indigenous rights in Canada take on the features of specific literary genres, and that the genre of these decisions changes over time in response to broader sociopolitical shifts. In response to Section 35(1) of the 1982 Constitution Act, Aboriginal title decisions took on the structural features of comedy, a genre in which reconciliation is facilitated by the disclosure of previously hidden family relationships. This can be seen in Delgamuukw v. British Columbia (1997), a decision wherein the SCC reconciles the uneasy coexistence of two legal systems (Indigenous and common law) within the same national space by making these systems members of the same legal family. Clements’ play critiques this form of genealogical reconciliation by demonstrating how Indigenous law is forced to join the “family” of settler-colonial common law, and by exposing the violence that is elided through such processes of genealogical reconciliation. This article contributes to critical conversations about the relationship between law and genre and about the legal recognition of Indigenous rights.

Groundbreaking judgments in Australia and Canada in the 1990s reveal that Indigenous land rights depend on evidence of Indigenous occupation and law when the British Crown asserted sovereignty. Looking back at earlier Indigenous rights decisions, it is apparent that they were not based on facts, but on prejudicial and erroneous assumptions about Indigenous peoples. In St. Catherine’s Milling (1888), Lord Watson said the rights of the Ojibwe Indians were based solely on the goodwill of the Crown, a conclusion that evidently stemmed from the trial judge’s racist assessment of Ojibwe society. In Cooper v Stuart (1889), Lord Watson wrongly described New South Wales as a “territory practically unoccupied, without settled inhabitants or settled law,” at the time it became a British colony. This article demonstrates that what was missing in the 1880s was not law supporting Indigenous land rights, but rather evidence that should have led to the application of existing law. Erroneous factual assumptions resulted in legal precedents that led to the denial of Indigenous rights for around a century. Nor is the impact of these precedents entirely spent. Even today, false arguments are made that there was no basis in nineteenth-century common law for Indigenous land rights.

International law on the rights of Indigenous peoples has developed rapidly in recent decades. In the latest phase of this development, international instruments on the rights of Indigenous peoples have increasingly offered universalized statements. However, the reality remains that the implementation of Indigenous rights must take place in particular circumstances in particular states. The form of domestic implementation of Indigenous rights may or may not connect closely to international law statements on these rights, and there may be good reasons for that. This essay takes up a particular example of Indigenous land rights and a significant recent development on land rights in the Supreme Court of Canada.

Due to incomplete records from the colonial period, particularly regarding cases of infringement on indigenous rights that often went undocumented, research struggles to fully reflect the legal impacts of that era. Therefore, this study explores the profound influence of colonial legal systems on indigenous rights and analyzes how modern legal redress mechanisms address and compensate for these historical injustices. The article first outlines how colonial legal systems deprived indigenous rights in areas such as land ownership, judicial fairness, and identity recognition, drawing on relevant legal documents and historical literature. Subsequently, through case analysis, the study examines the specific impacts of colonial legal systems on indigenous rights across different periods, employing qualitative and quantitative analysis to assess the effectiveness of modern legal redress mechanisms in restoring indigenous rights, safeguarding cultural heritage, and promoting social justice. The findings reveal the depth and breadth of these historical impacts. Data indicate that indigenous land ownership during the colonial period rated only 2 out of 10. Additionally, economic restrictions imposed on indigenous populations disadvantaged them in competition with Portuguese merchants. The study shows that, through a comparative analysis of legal influences over different periods, the rating of indigenous land rights improved to 4 in the pre-reversion period but continued to face challenges in cultural protection, scoring only 3.

An earlier article addressed recent developments in Australia concerning indigen-ous land rights and outlined political and legal aspects of the debate surrounding that. This is a more specifically comparative study that seeks to compare the legal aspects of the land rights of Australian indigenous people with the legal aspects of the land rights of the Sami people in Scandinavia. The paper recognises from the outset that these two parts of the world possess different legal histories, but argues that in the modern international context, comparisons can be drawn with respect to indigenous human rights. Further, the paper contends that in both these societies, there have been advances and retreats and that only full governmental commitment to the principles of international law will ensure that the human rights of the respective indigenous people advance.In looking at comparative indigenous rights, or the failure to achieve rights, the focus is on property, including consideration of inclusion/exclusion of native people as citizens, the effects of colonization and relative access to goods and services, language recognition, rights of cultural development and protection of heritage, as well as practical implications in controlling other forms of development and fostering sustainable growth. We broaden the consideration of indigenous human rights to include matters of compensation and costs. Our overall contention is that it remains one of the principal challenges for both Australian and Scandinavian law to identify and translate co-existence and human rights for the indigenous people of those nations. In framing any such legal measures, governments will have to confront wider political issues of tolerance, sovereignty and citizenship. The dilemma for Australian Aboriginals is that the chance to remain Aboriginal may have to involve an appeal to the prin-ciples of international law whereas in Scandinavia the recognition of Sami reindeer herding has generally failed to foster broader rights to land and natural resources although there are some signs that this is emerging in Norway.

This analysis explores the circulation of legal arguments, instruments, and decisions across national, regional, and global scales to reveal the mutual interdependence of these scales and their associated bodies of law in the production of indigenous land rights. Anthropologists studying the production of international human rights law have focused primarily on the drafting and implementation of rights instruments within the UN system, but this article engages a different site for the production of rights: the judicial arena. Highlighting the role played by judicial decisions and the arguments of legal scholars in the production of indigenous land rights, this article traces the trajectory of a petition for recognition of indigenous rights to land by Mopan and Q'eqchi’ Maya of Belize, as it moved from Belize to the Inter‐American Commission on Human Rights. The resulting decision circulated through subsequent indigenous rights cases within the Inter‐American system to solidify regional jurisprudence on indigenous rights. The IACHR decision also returned to Belize, where the Supreme Court engaged it to reach its own decision on Maya land rights. In turn, the Belize Supreme Court ruling was launched into global circulation, shaping arguments concerning the content and status of international indigenous rights law.

Since the colonial era, indigenous land in Brazil has been occupied by farmers, who are often supported by governmental frontier expansion policies. Brazil’s democratic Constitution of 1988 represented a major paradigm shift from a view that aimed to integrate and assimilate indigenous populations to one that, for the first time, recognized the right of indigenous people to their own culture. The constitutional text also established indigenous original rights over the lands that they traditionally occupied, tasking the federal government with the duty of demarcating these lands. However, the demarcation of indigenous land still faces challenges today. First, the demarcation procedure is bureaucratic, complex, and time-consuming. Second, judicial battles have resulted from a controversy over the constitutional expression “land traditionally occupied.” Third, the demarcation process is subject to the political will of the Minister of Justice and the President. Fourth, the absence of a unique and comprehensive rural land registration data center presents a major problem that has resulted in uncertainty and conflict over land due to different types of overlapping properties. Fifth, many land conflicts involve indigenous land, protected areas, private properties, and small holders, which frequently result in violence and murder. Finally, there are several proposals and amendments to existing legislation that seek to modify the indigenous land demarcation process to make it more difficult or prevent the enforcement of the indigenous land rights. This chapter describes the Brazilian legal procedures for indigenous land demarcation, including a flowchart of the key steps of the process, and analyzes the main challenges to securing indigenous land rights.

This article deals with the interactions between rights accorded to indigenous peoples to their ancestral land and the system of protection of international investment law. The nature of indigenous rights and especially those relating to indigenous lands is one which makes their characterization as human rights alone untenable. This article argues that they are rather hybrid rights, straddling the two areas of human rights and environmental protection. After an initial discussion drawing on social theory, public international law developments are evaluated in terms of the obligations they place on states to uphold indigenous land rights. These obligations are then examined from the perspective of an arbitral tribunal constituted pursuant to an international investment agreement. The normative conflicts which such tribunals are faced with could potentially be resolved either through a conflict of norms analysis or through interpreting investment-related obligations in a manner which accommodates the protection of indigenous land rights. It is argued that while the first solution is ultimately the most straightforward, it is the second solution which is currently more viable, in light of recent arbitral practice.