Abstract
The nexus between the indigenous African and the land on which they live cannot be gainsaid. So important is this relationship that land is a sine qua non for the survival of the indigenous African and indigenous African cultures. However, despite this undisputed link, the indigenous African as well as other colonized peoples, lost ownership of their lands due mainly to the adverse effects of subjugation. The direct upshot of this is that even where the former colonial masters and their successor states have become sympathetic to the indigenous populations and decide to retrocede some of their land, they often encounter obstacles both in law and in modern history that are not easy to avoid. This was also the case in some countries where indigenous peoples lost their lands to settlers who took over command and decided on their destiny, such as the indigenous peoples in Australia. It was in an attempt to put this issue to rest that the High Court of Australia in the locus classicus MABO No. 2 attempted to define the circumstances under which land can revert to the indigenous populations as a matter of human rights. This article examines some of the “hooks” that the apparently generous MABO No. 2 decision may present, where there is an attempt to transpose it mutatis mutandis as an avatar to resolve the problem of indigenous land rights in Africa. The paper attempts to answer the question as to what extent the decision of the High Court of Australia in MABO No. 2 can be used to resolve indigenous land claims in Africa. Through an analytical approach, the paper investigates the challenges inherent in attempting to use the decision as a South-South mutual inspiration due to the contextual, historical and evolutionary differences between the Australian and African situations. The paper finds out that the decision in MABO No. 2 carries in it the very germ of its inapplicability in the African context and makes suggestions on how to read the MABO decision in the context of the present-day dispensation of indigenous African land law.
Highlights
It is generally accepted that land and its resources are important to the survival of indigenous cultures, and by implication indigenous peoples1
This article examines some of the “hooks” that the apparently generous MABO No 2 decision may present, where there is an attempt to transpose it mutatis mutandis as an avatar to resolve the problem of indigenous land rights in Africa
This paper examines the possible challenges one may face in advocating for the use of the MABO decision as inspiration to resolve indigenous land claims in the African context
Summary
It is generally accepted that land and its resources are important to the survival of indigenous cultures, and by implication indigenous peoples. Australia happens to be one of the countries where a congruence of all these three factors has afforded some form of rights to its indigenous peoples Povinelli justifies this by stating that it was the juridical struggle to formulate a legally valid multicultural form of common law that provided a important perspective on late liberal forms of power and that: Legal decisions bring into sharp relief the disjunction between ideologies of recognition and the practices and pragmatics of the distribution of right, materials, and institutions. This paper is limited to answering the question to what extent the decision of the High Court of Australia in MABO No 2 can be used to resolve indigenous land claims in Africa. The court in MABO found that Aboriginal Australians retained their native title interests in land if they retained the traditional customs, beliefs, and practices that created the substance of their difference and if these customs were not repugnant to equity, natural justice and good conscience
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