Parallel Histories: Conquest, Sovereignty, and Property in Alva Ixtlilxochitl and His Sources

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.

The proposal to create a Northern Corridor that would allow for cross-country, multi-modal infrastructure development is an ambitious vision (Sulzenko and Fellows 2016; Standing Senate Committee 2017). This proposed infrastructure corridor would incorporate multiple uses, from pipelines to railways, roads, telecommunications, electricity infrastructure and more. Its geographic scale stretches continuously from coastal B.C. across Canada to the Atlantic coast, with spurs running northward to the Arctic Ocean through the Northwest Territories, Nunavut and via Manitoba to Hudson’s Bay. A critical foundation for its successful development will be the ability to appreciate and incorporate the rights of Indigenous peoples affected by the project (Wright 2020; Newman 2022). The goal of this research paper is to outline the law of Indigenous peoples’ land ownership rights, including proven and asserted title, Crown-Indigenous treaty relations and obligations and Indigenous land claims agreements, and to consider the implications for a large-scale infrastructure project like the Northern Corridor.1 The focus is on the legaland regulatory aspects of Indigenous peoples’ land rights within the non-Indigenous Canadian legal system.2 The research paper uses standard legal methods to assess the land ownership rights of Indigenous peoples, drawing on relevant constitutional and statutory provisions, leading cases and secondary literature. The paper proceeds with a brief overview of these distinct types of Indigenous land rights, then provides a more detailed account of the legal content of s. 35 constitutional Aboriginal title, historic and modern treaty rights. This includes discussion of government’s legal duty of consultation and accommodation, and the requirements for constitutionally justified limitation of these rights. Indigenous land ownership rights in reserve lands are also discussed. A series of case studies more fully illustrates the implications of these varied Indigenous land rights for a project like the Northern Corridor. Finally, the paper turns to the dynamic nature of Indigenous rights and the potential influence of the UNDRIP. The implications of Indigenous peoples’ land rights for the proposed Northern Corridor are extensive. While many of the legal obligations fall on the Crown, as represented by provincial, territorial and federal governments, industry proponents must also play a role. Project proponents engage directly with Indigenous land-rights holders and are crucial to the exchange of information, mitigation of project impacts and creation of benefits for Indigenous communities. Successful development of the Northern Corridor infrastructure project requires a partnered approach with affected Indigenous rights- holding communities. Portions of the proposed corridor traverse the traditional territories of Indigenous peoples over which Aboriginal title is claimed. Where Indigenous claimants demonstrate sufficient, exclusive use and occupation of the land prior to Crown claims of sovereignty, title will be established. The legal test for recognizing title is one that reflects both the common law and Aboriginal perspectives, and is sensitive to context. The geographic scope for successful Aboriginal title claims that overlap with the Northern Corridor is significant. Where Indigenous peoples hold title to the land, they are collectively entitled to exclusively enjoy the benefits of that land, and to decide on its uses. Governments or third parties seeking access to the land require consent from the title holders. In the period before title is established, governments authorizing projects like the Northern Corridor, that could negatively impact Aboriginal title, must consult with Indigenous peoples and, when appropriate, accommodate their interests. This is required to maintain the Honour of the Crown. While the legal duty falls on government, project proponents working directly with Indigenous peoples are an important part of the consultation and accommodation process. Governments do retain a legal ability to justifiably limit Aboriginal title. They can pursue projects in the public interest that are consistent with s. 35’s reconciliation purpose, if they meet the requirements of their unique obligations to and relationship with Aboriginal people (the fiduciary duty and Honour of the Crown). This means satisfying the procedural duty to consult and accommodate Aboriginal title holders, pursuing only limits on title that do not damage their long-term relationship with the land, as well as meeting a recently outlined requirement for proportionality. Proportionality means that limits on Aboriginal title must be necessary to achieve the public purpose and must be as minimal as possible, and that the overall public benefit must not be outweighed by negative impacts on title holders. Projects that go forward with participation and consent of Indigenous title holders will meet these requirements. There is also potential for the Northern Corridor to cross reserve lands. Where these remain subject to the Indian Act, one of the relevant statutory mechanisms for access must be used. These require consent from the band and federal government. For bands that have transitioned to management of their reserves under the First National Land Management Act (FNLMA), only consent of the band as set out in its Land Code is required. The Northern Corridor also crosses lands over which Indigenous people hold land rights under the historic “Numbered Treaties.” While the treaties appear to include formal surrenders of Aboriginal title (an interpretation that is contested), continued rights of use over traditional territories are critical elements of these constitutionally binding agreements. Although governments can “take up” surrendered lands for development, this right is subject to a duty to consult Indigenous parties and accommodate impacts on their treaty rights. Governments can justifiably infringe historic treaty rights. This can be done when a permissible objective is pursued in a way that meets government’s fiduciary duty and upholds the Honour of the Crown. The specific requirements can vary, but generally the test is more restrictive when non-commercial treaty rights are at stake and requires some form of priority to be given to these Aboriginal rights. The requirement for justification is triggered when treaty rights are infringed — when a group is deprived of a meaningful ability to exercise its treaty rights within its traditional territory. Recent developments suggest this threshold should be assessed looking to cumulative impacts and that a process for monitoring and addressing these is part of justified limits on these historic treaty rights. Finally, the Northern Corridor also intersects with lands covered by modern treaties. These agreements provide detailed guidance about the specific rights Indigenous parties enjoy, processes for consultation and co-management of the treaty lands as well as interactions between jurisdictional decisions under the treaty and by other levels of government. Courts have outlined a distinctive approach to the modern treaties that recognize their sophistication and the efforts to negotiate these modern governance frameworks to advance reconciliation. Courts would pay close attention to the relevant treaty terms and processes in any dispute over development of the Northern Corridor. Relatively minimal supervision of the modern treaty relationships should be expected from the courts, although the Honour of the Crown and the obligations it places on governments still apply. It is unclear whether justified infringements of modern treaty rights are possible, and whether a stricter constitutional standard would be required. Case studies of recent infrastructure and resource development projects show that while much of the law is clear, outstanding issues remain, and the practical application of the law can be challenging. The sufficiency of consultation can be in doubt on complex projects involving multiple Indigenous communities. Basic issues such as who to consult can emerge when there is overlap between traditional and Indian Act governance structures and both reserves and other land rights are involved. The applicability of Indigenous laws to traditional territories under claims of Aboriginal title and interactions between Indigenous law and jurisdiction and non-Indigenous law and government authority can also be unclear. Many modern projects proceed with the consent and participation of Indigenous peoples, for example, through benefit agreements. These agreements, because of their link to the underlying Aboriginal rights, can engage the Honour of the Crown and the duty to consult if subsequent developments negatively affect benefits under the agreements. In practice, meeting the legal obligations triggered by Indigenous land rights requires direct, good faith engagement with affected Indigenous communities. The best-case scenario is partnered development that proceeds with the consent of Indigenous rights holders. Current case law suggests that projects like the Northern Corridor might go ahead without full consensus, since there is no “veto” implicit in s. 35(1) Aboriginal rights. However, legal requirements for justified infringements, if possible, still require adequate consultation and accommodation of the rights of Indigenous peoples, and support only necessary, minimal limits on their rights. Overall benefits must outweigh negative impacts on Indigenous communities, and their ability to benefit directly from projects or be compensated for harms is generally part of justifying limits on their rights. On the ground, project proponents will be deeply involved in the relationship-building and engagement that is needed to support consensual development, or will meet the high bar for constitutional justification. Determining whether governments’ legal obligations ultimately have been met is done at a detailed, fact-specific level — not in the abstract. There are no leading cases that support constitutional justification of hypothetical, indeterminate public uses such as the proposed Northern Corridor. The law of Indigenous rights is constantly evolving. Over the lifespan of a project like the Northern Corridor, change would be certain. Canadian approval of the UNDRIP and recent federal and provincial legislation committing to bring Canadian law into compliance are important signals of future development. The UNDRIP embraces a model of Indigenous rights grounded in self-determination and its standard of “free, prior, informed consent” appears to reflect the ability of Indigenous peoples to make their own decisions about projects that impact their rights. The legal implications of the UNDRIP for s. 35 and Indigenous land rights in Canada remain to be seen. As with modern treaties and the FNLMA, it represents a resurgence in Indigenous peoples’ rights to play a direct role in governing their traditional lands and bringing their own laws to bear on developments that impact their lands and rights. Co-management and shared governance frameworks that integrate Indigenous rights holders will likely be key to successful future project development. For a proposal like the Northern Corridor, further study is required to fully appreciate the implications of these nascent developments and consider how they should be reflected in the project proposal.

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

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.

Reviewed by: Alva Ixtlilxochitl's Native Archive and the Circulation of Knowledge in Colonial Mexico by Amber Brian Travis Jeffres Brian, Amber. Alva Ixtlilxochitl's Native Archive and the Circulation of Knowledge in Colonial Mexico. Nashville: Vanderbilt UP, 2016. 196 pp. In the last two decades, several highly significant Nahuatl-language texts produced during the seventeenth century have been brought to light and now appear in English translation, representing major contributions to our understanding of prehispanic and colonial Mexico (Arthur J. O. Anderson and Susan Schroeder's Codex Chimalpahin volumes 1-2, and Camilla Townsend's Here in This Year: Seventeenth-Century Nahuatl Annals of the Tlaxcala-Puebla Valley are fine examples). As this ongoing scholarship increases our understanding of native intellectual projects and makes them more accessible, new questions arise. How, for instance, did indigenous knowledge circulate within colonial society, and in what ways did it shape the broader intellectual landscape? Amber Brian tackles these questions in Alva Ixtlilxochitl's Native Archive and the Circulation of Knowledge in Colonial Mexico. In the process, she contributes substantially to our understanding of colonial epistemologies and the distribution of knowledge in New Spain. Grounding her study is the seventeenth-century transfer of mestizo intellectual don Fernando de Alva Ixtlilxochitl's collection of native manuscripts to the creole letrado don Carlos de Sigüenza y Góngora. Brian breaks sharply with historians interpreting the exchange as a "one-way appropriation" of native knowledge by creole patriots seeking to articulate a distinctive Mexican identity (10). She advocates instead for the dynamic, complex nature of knowledge transfer, identifying interpersonal relationships and exchanges as cornerstones of "a more nuanced and vibrant image of colonial intellectual life" in New Spain (10). Ultimately Brian argues that knowledge in colonial Mexico was constructed collaboratively across social and intellectual spheres. It was deployed, furthermore, by individuals occupying [End Page 253] distinctive social positions and according to the discursive structures prevailing at "particular epistemic moment[s]" (38). Social and epistemological contexts are important leitmotifs informing the author's discussion of knowledge production and exchange. Alva Ixtlilxochitl had privileged access to native informants as well as an impressive collection of alphabetic and pictorial manuscripts at his disposal when writing his histories. That he chose to disseminate knowledge derived from those sources in Spanish according to European discursive norms need not be interpreted as evidence of his identification with Spaniards, as some scholars have averred. Rather Brian suggests it is indicative of how he "used his bicultural vantage point to make the stories derived from native sources relevant to the Hispano-Catholic context in which he lived and worked" (80). Thus Brian enjoins us to understand Alva Ixtlilxochitl in reference to his specific social context—as an intermediary straddling the indigenous and Spanish cultural worlds—and to interpret his work "within the terms of its own epistemological moment" (39). Throughout, Brian defies facile categorizations and seeks to dismantle binaries. She considers the model Ángel Rama proposed in The Lettered City (La ciudad letrada, 1984), for example, to be a "dichotomous theory" (7). According to Brian, Rama's interpretation of a colonial society marked by antagonism between educated (white) elites and a non-literate (native/casta) populace ignores indigenous intellectuals as well as cultural intermediaries like Alva Ixtlilxochitl. Brian proposes instead that "the lettered city is founded on … exchange and dialogue" and is the reflection of "various sorts of relationships and collaborations rather than a dichotomy" (8). Likewise, she assigns little if any significance to Alva Ixtlilxochitl's biological categorization as mestizo. "Recognizing the importance of the particular over the categorical," she identifies his specific social positioning between the Nahua and Spanish spheres "as the defining feature of his mestizo histories" (80). This book should be commended for its excellent scholarship, particularly its superb primary source analysis. Two examples are worth noting. In chapter three, Brian invokes her deep knowledge of the works of Renaissance humanists to illuminate how Alva Ixtlilxochitl couched indigenous knowledge firmly in European discursive forms but also twisted them "against the grain of the empire to create a discourse of critique" (105). In chapter one, Brian identifies a passage in Alva Ixtlilxochitl's Historia de la nación chichimeca that...

It is often stated that indigenous law confers no property rights in land. Okoth-Ogenda reconceptualised indigenous land rights by debunking the myth that indige-nous land rights systems are necessarily "communal" in nature, that "ownership" is collective and that the community as an entity makes collective decisions about the access and use of land. He offers a different understanding of indigenous land rights systems by looking at the social order of communities that create "reciprocal rights and obligations that this binds together, and vests power in the community members over land". To determine who will be granted access to or exercise control over land and the resources, one needs to look at these rights and obligations and the performances that arise from them. This will leave only two distinct questions: who may have access to the land (and what type of access) and who may control and manage the land resources on behalf of those who have access to it? There is a link with this reconceptualisation and the discourse of the commons. Os-trom's classification of goods leads to a definition of the commons (or common pool of resources) as "a class of resources for which exclusion is difficult and joint use in-volves subtractablity". The questions this article wishes to answer are: would it firstly be possible to classify the indigenous land rights system as a commons, and sec-ondly would it provide a useful analytical framework in which to solve the problem of securing land tenure in South Africa?KEYWORDS: Indigenous law; African indigenous land rights; property rights; African indigenous land tenure; the commons

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.

Indigenous land rights and deforestation: Evidence from the Brazilian Amazon

<p>This article examines state obligations under indigenous territorial rights. The cultural survival and development of indigenous peoples depends on their spiritual and factual connection with their lands. It argues that indigenous ancestral land rights derive from international and national law. Indigenous customs prefer a collective land tenure system to individual property rights. State obligations regarding indigenous ancestral land rights are based on international human rights treaties and national systems. In short, the paper argues that states have an obligation to respect, protect, and fulfil indigenous land rights. This article also examines their enforcement in the international and domestic arenas.</p><p><strong>Published online</strong>: 11 December 2017</p>

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.

ABSTRACTMany indigenous communities in Suriname have been displaced from their traditional lands because the State does not recognise their collective property rights. Despite this, Suriname has not complied with multiple judgements of the Inter-American Court of Human Rights that attempt to remedy the situation. The aim of this paper is to identify how the Inter-American System of Human Rights can stimulate full compliance with judgements of the Inter-American Court of Human Rights concerning indigenous land rights in Suriname. The paper draws on a variety of sources in order to assess the current compliance efforts of the system. Based on this assessment, the paper suggests how to improve conventional mechanisms of compliance in order to stimulate full implementation of the judgements. The paper finds that the monitoring process of the Court, thematic reports, and country visits can be used more effectively in order to stimulate compliance. Drawing from transnational legal theory, the paper also suggest that the system should interact with international organisations and actors beyond the executive organs of the State in order to stimulate full compliance with the judgements of the Court. These findings can be used to increase the effective protection of indigenous land rights in Suriname.

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.

It is often stated that indigenous law confers no property rights in land. Okoth-Ogenda reconceptualised indigenous land rights by debunking the myth that indigenous land rights systems are necessarily "communal" in nature, that "ownership" is collective and that the community as an entity makes collective decisions about the access and use of land.[1] He offers a different understanding of indigenous land rights systems by looking at the social order of communities that create "reciprocal rights and obligations that this binds together, and vests power in the community members over land". To determine who will be granted access to or exercise control over land and the resources, one needs to look at these rights and obligations and the performances that arise from them. This will leave only two distinct questions: who may have access to the land (and what type of access)[2] and who may control and manage the land resources on behalf of those who have access to it?[3] There is a link with this reconceptualisation and the discourse of the commons. Ostrom's classification of goods leads to a definition of the commons (or common pool of resources) as "a class of resources for which exclusion is difficult and joint use involves subtractablity".[4] The questions this article wishes to answer are: would it firstly be possible to classify the indigenous land rights system as a commons, and secondly would it provide a useful analytical framework in which to solve the problem of securing land tenure in South Africa?

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.

ABSTRACTThe indigenous struggle to secure land rights remains a highly contentious issue. This article offers a qualitative discussion of key concepts and a quantitative description of the state-of-the-art indigenous land rights literature based on bibliometric methods. It argues that a Polanyian conception of reciprocity is vital to understanding the relationship between some indigenous peoples and their land. Conceptually, reciprocity is based on the notion of interdependence. The qualitative exercise shows the difference between land rights and territorial rights. Indigenous peoples are fighting for territorial rights as they are linked to self-determination and foster cultural reproduction. The findings indicate that issues related to indigenous land rights in Latin America have generated much scholarly interest in recent times. Arguably, this trend is linked to several factors, including neoliberal multiculturalism, the pink tide, and the territorial turn. The paper highlights the need for research that focuses on social dispossession and social differentiation in indigenous communities. Specifically, it calls for research on how social differentiation plays out in the context of indigenous land rights, including how social dispossession supports the expansion of capitalism in indigenous communities.