Indigenous Peoples' Land Rights: Developing a Sui Generis Approach to Ownership and Restitution

Abstract

AbstractIndigenous peoples experience some of the highest levels of poverty and marginalisation in the world. Land dispossession, forcible relocation and assimilationist programmes contributed to the destruction of indigenous peoples' social and political structures, resulting in physical and spiritual dislocation. Indigenous peoples' contemporary situation is understood by examining their historico-political and legal location, for example, colonial conquests underpinned by dubious legal doctrines, such as terra nullius and uti possidetis which crystallised European borders at decolonisation. Initially facilitating the expropriation of indigenous peoples' lands, international law has evolved to a point where accommodation of restitution is possible. Considering land as central to indigenous peoples' cultures, the article traces the process of acknowledging indigenous peoples' land rights, from the original state-centric position of denial and non-recognition, to one of gradual acceptance, catalysed by progressions in international and human rights law. The author questions whether this new era of 'partnership' and 'mutual respect' can alleviate the extreme conditions experienced by indigenous peoples worldwide, and, moreover, whether these emerging standards will adequately protect indigenous peoples' autonomy and control over their traditional lands in a time of impinging material and economic interests of states and other non-state entities.