Indigenous Peoples’ Right to Land

Max Planck Yearbook of United Nations Law

Volumn 8, Issue , 2005, Pages 1-47

  Ulfstein, Geir ^a  

^a NONE

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EID: 85180114846     PISSN: 13894633     EISSN: None     Source Type: Book Series    
DOI: None     Document Type: Chapter

References (77)

1. G.C. Marks, “Indigenous Peoples in international law: the significance of Francisco de Vitoria and Bartolome de Las Casas”, Austr. Yb. Int’l L. 13 (1992), 1 et seq. (2-3 and 7-8). Also printed in S.J. Anaya (ed.), International Law and Indigenous Peoples, 2003, 3 et seq. (4-5, 9-10).
2. 1994/45 Draft United Nations Declaration on the Rights of Indigenous Peoples. The draft declaration may be found at the web site of the UN High Commissioner for Human Rights .
3. See, inter alia, article 30 of the United Nations Convention on the Rights of the Child, 1989, UNTS Vol. 1577 No. 27531; Principle 22 of the Rio Declaration on Environment and Development, 1992 (ILM 31 (1992), 874 et seq.); Part I, para. 20 of the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights in Vienna, 1993 (ILM 32 (1993), 1661 et seq.); and para. 5 of the General Recommendation XXIII by the Committee on the Elimination of Racial Discrimination, under the International Convention on the Elimination of All Forms of Racial Discrimination UNTS Vol. 660 No. 9464. See further R. Wolfrum, “The Protection of Indigenous Peoples in International Law”, ZaöRV 59 (1999), 369 et seq.
4. S.J. Anaya, “Introduction”, in: Anaya, see note 1, xii-xxi at xiii-xiv.
5. Proposition to the Odelsting No. 53 for 2002-2003 concerning an Act relating to legal relations and management of land and natural resources in the county of Finnmark (Finnmark Act).
6. International Covenant on Civil and Political Rights, 1966, UNTS Vol. 999 No. 14668.
7. ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, 1989, UNTS Vol. 1650 No. 28383.
8. There is an extensive literature on self-determination in international law, among others, J. Crawford (ed.), The rights of peoples, 1998; C. Tomuschat (ed.), Modern law of self-determination, 1994; A. Cassese, Self-determination of peoples. A legal appraisal, 1995; M. Koskenniemi, “National self-determination today: problems of legal theory and practice”, ICLQ 43 (1994), 241 et seq.; P. Aikio/ M. Scheinin (eds), Operationalizing the right of indigenous peoples to self-determination, 2000; P. Alston (ed.), Peoples’ rights, 2001;
9. and G. Pentassuglia, “State sovereignty, minorities and self-determination: a comprehensive legal view”, International Journal on Minority and Group Rights 9 (2002), 303 et seq.
10. See Chief Bernard Ominayak and the Lubicon Lake Band v. Canada, Communication No. 167/1984: Canada, of 10 May 1990, Doc. CCPR/C/38/D/167/1984 (Jurisprudence), para. 13.3. The decisions of the HRC are available on the web site of the UN High Commissioner for Human Rights, .
11. General comments by the HRC are available under .
12. Doc. CCPR/C/79/Add.105.
13. See M. Scheinin, “The right to self-determination under the Covenant on Civil and Political Rights”, in: Aikio/ Scheinin, see note 8, 179 et seq. (190).
14. Doc. CCPR/C/79/Add. 112 (1999).
15. Doc. CCPR/C/79/Add. 109 (1999), para. 19.
16. Doc. CCPR A/55/40, para. 498-528 (2000).
17. Doc. CCPR/CO/74/SWE (2002), para. 15.
18. CCPR General Comment 23. The rights of minorities (article 27) of 8 April 1994.
19. Lubicon Lake Band v. Canada, see note 9.
20. Scheinin, see note 12, 194.
21. Ilmari Länsman et al. v. Finland, Communication No. 511/1992: Finland, of 8 November 1994, Doc. CCPR/C/52/D/511/1992 (Jurisprudence).
22. Ibid., para. 9.6.
23. Jouni E. Länsman et al. v. Finland, Communication No. 671/1995: Finland, of 22 November 1996, Doc. CCPR/C/58/D/671/1995 (Jurisprudence), para. 10.7.
24. Apirana Mahuika et al. v. New Zealand, Communication No. 547/1993: New Zealand, of 15 November 2000, Doc. CCPR/C/70/D/547/1992 (Jurisprudence), para. 9.4.
25. Ibid., para. 9.8.
26. Ibid., para. 9.2.
27. The ILO Convention No. 169 entered into force in 1991. Seventeen states are parties to the Convention, including several central Latin American countries, Norway and Denmark. But among the non-parties we find the United States, Canada, Sweden and Finland. The Convention encompasses no countries in Africa, and in Asia only Fiji. See .
28. ILO Convention No. 107 on Indigenous and Tribal Populations, 1957. The Convention may be found under .
29. See L. Swepston, “A New Step in the International Law on Indigenous and Tribal Peoples: ILO Convention No. 169 of 1989”, Oklahoma City University Law Review 15 (1990), 677 et seq. (692-695).
30. The Vienna Convention on the Law of Treaties, 1969, UNTS Vol. 1155 No. 18232.
31. The negotiations on land rights have been described as “heated and protracted”; see M. Tomei/ L. Swepston, Indigenous and Tribal Peoples: a Guide to ILO Convention No. 169, ILO 1969 (“ILO Guide”). See also Swepston, see note 28, 696 and 699.
32. 101 changes were proposed in the provisions on land rights, see ILO Prov. Records 76th Sess. 1989 (25), 16-17. See also R. Barsh, “An Advocate’s Guide to the Convention on Indigenous and Tribal Peoples”, Oklahoma City University Law Review 15 (1990), 209 et seq. (210), and N. Lerner, “The 1989 ILO Convention of Indigenous Populations. New Standards?”, Isr. Y. B. Hum. Rts. 20 (1991), 223 et seq. (237).
33. See Barsh, see note 31, 213.
34. Representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Confederación Ecuatoriana de Organizaciones Sindicales Libres (CEOSL), para. 31.
35. Barsh, see note 31, 219.
36. Representation alleging non-observance by Colombia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Central Unitary Workers’ Union (CUT), paras. 78 and 90. See also Ecuador, see note 33, para. 39. Swepston says that what is required is a “true dialogue” (L. Swepston, “The ILO Indigenous and Tribal Peoples Convention (No. 169): eight Years after Adoption”, in: C. Price Cohen (ed.), The Human Rights of Indigenous Peoples, 1998, 17 et seq., 23).
37. Case Concerning the Land and Maritime Boundary Between Cameroon And Nigeria, ICJ Reports 2002, 303 et seq. (424, para. 244).
38. Case against Ecuador, see note 33, para. 44.
39. Report of the Committee set up to examine the representation alleging non-observance by Bolivia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Bolivian Central of Workers (COB) Submitted: 1998 Document: (GB.272/8/1), Document: (GB.274/16/7).
40. Report of the Committee set up to examine the representation alleging non-observance by Peru of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the General Confederation of Workers of Peru (CGTP) para. 32 (b), see also paras 30-31.
41. See Swepston, see note 28, 698-699 and ILO Guide, see note 30.
42. OED Online .
43. Black’s Law Dictionary, 7th edition, 1999.
44. The Eastern Greenland case, PCIJ Ser. A/B, No. 53, 63.
45. CEACR 1995/65th Session. See also L. Hannikainen, “The Status of Minorities, Indigenous Peoples and Immigrant and Refugee Groups in Four Nordic States”, Nord. J. Int’l L. 65 (1996), 1 et seq. (54).
46. Swepston, see note 28, referring to the preparatory works of the ILO Convention, 701.
47. The ILO’s Committee of Experts has the following view of the definition of “ownership” in the ILO Convention of 1957: “While the Committee of Experts had not found an exact equivalence between ‘possession’ and ‘ownership’, it had not found the firm assurance of possession and use to be in violation of the requirement for ‘ownership’” (ILO Prov. Record 76th Sess. 1989 (25), 23).
48. See the ILO’s comment during the negotiations: “As concerns the use of the terms ‘ownership’, ‘possession’ and ‘use’, the Governments of Canada and Norway have made identical proposals based on a proposal submitted during the first discussion. In view of other observations received, the Office considers that to assimilate the term ‘use’ to ownership and possession would weaken the revised Convention by comparison with Convention No. 107, which recognises the right to ownership; it has therefore dealt with this question separately. The Government of India considers that the concept of possession is unacceptable, and proposes its deletion. This wording would, however, correspond to cases in which the rights which indigenous or tribal peoples have acquired through occupation should be recognised, but it is not appropriate to recognise them through ownership. Several respondents, and the Meeting of Experts convened on this question in 1986, have put forward effective arguments in favour of including the concept, and representatives of indigenous and tribal peoples themselves have indicated that they often attach more importance to possession than to ownership.” (Report IV (2 A) ILO 76th Sess. 1989, 36).
49. Swepston, see note 28, 700. He also refers to the fact that the introduction of “use” alongside “ownership and possession” was rejected. See also Barsh, see note 31, 224-25.
50. Swepston, see note 28, asserts: “No consensus appeared to exist among the members of the Committee on either the meaning or the implications of the wording that it adopted in this sentence. It would seem, however, that the Committee’s intent was not to weaken the right of ownership which existed in Convention No. 107, but rather to make the new convention more broadly applicable to a wide range of circumstances”, (700). See also Barsh, see note 31, 224-25 on protection of “the highest form of ownership or tenure accorded to others in the country.”
51. The ILO Guide, see note 30, asks the following: “Does this mean that indigenous and tribal peoples always have the right to title over their traditional lands? Not necessarily – the Convention talks of ‘rights’ in the plural. There are many cases in which indigenous and tribal peoples do not have full title to their traditional lands. After a long discussion in the Conference, it was concluded that in some circumstances the right to possession and use of the land would satisfy the conditions laid down in the Convention, as long as there was a firm assurance that these rights would continue … It should be made very clear that this sentence is not meant to deprive these peoples of the greatest degree of land rights attainable. It had to be drafted in a way that would take into account different situations, and the fact that not all indigenous and tribal peoples are in a position to exercise the full rights of ownership.”
52. This was adduced by a majority of the Sami Rights Committee’s working group on legal matters, NOU (Norway’s Official Reports) 1993: 34, 56.
53. Proposition to the Odelsting No. 53, see note 5, 88-89.
54. See ILO Report VI (1) 75th Sess. 1988, 72: “During the Meeting of Experts it was noted that in many countries those who hold title to land do not have rights to the subsoil and other resources; even though indigenous and tribal peoples have special needs and special claims in regard to such resources, a stronger provision which simply extends ownership of these resources to these peoples would prove incompatible with the legal systems of a number of countries.”
55. See Swepston, see note 28, 703.
56. See Swepston, see note 28, 704.
57. See Barsh, see note 31, 229 and S.J. Anaya, Indigenous Peoples in International Law, 1996, 106.
58. See section 3 of lov om bergverk (Mining Act) of 30 June 1972 No. 70 and section 1 of lov om undersøkelser etter og utvinning av petroleum i grunnen under norsk landområde (Act relating to Onshore Exploration for and Production of Petroleum in Norway) of 4 May 1973, No. 21.
59. See T. Falkanger, Tingsrett, 5th edition, 2000, 428-436.
60. See C. Thornberry, Indigenous Peoples and Human Rights, 2002, 356.
61. Norway has been criticized by the ILO for not conducting consultations under article 15 para. 2 prior to granting mineral exploration permits (Comments made by the Committee of Experts on the Application of Conventions and Recommendations (from 1990) Indigenous and Tribal Peoples Convention, 1989 (No. 169), CEACR 1995, 65th Sess., para. 23).
62. NOU (Norway’s Official Reports) 1997: 4 Naturgrunnlaget for samisk kultur.
63. Proposition to the Odelsting, see note 5.
64. See especially Supreme Court Reports 2001, 769, and 2001, 1229.
65. Proposition to the Odelsting, see note 5, 127.
66. Proposition to the Odelsting, ibid., 127.
67. Proposition to the Odelsting, ibid., 128.
68. Proposition to the Odelsting, ibid., 120.
69. Proposition to the Odelsting, ibid., 90-91.
70. The Danish State issued on 9 October 1997 the following declaration upon ratifying the Convention:
71. Report of the Committee set up to examine the representation alleging non-observance by Denmark of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the National Confederation of Trade Unions of Greenland (Sulinermik Inuussutissarsiuteqartut Kattuffiat-SIK) (SIK), Submitted: 2000 Document: (GB.277/18/3), Document: (GB.280/18/5).
72. Report of the Committee of Experts on the Application of Conventions and Recommendations, Indigenous and Tribal Peoples Convention, 1989 (No. 169), Observation, CEACR 2003/74th Sess., para. 16.
73. NOU (Norway’s Official Reports) 1997: 5, 44.
74. NOU (Norway’s Official Reports) 1997: 5, 41. Article 17 para. 2 provides: “The peoples concerned shall be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own community.”
75. European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (ETS No. 5).
76. Observation, CEACR 2003/74th Sess., see note 71, para. 19.
77. Letter of 14 June 2004 from the Ministry of Justice to the Justice Committee of the Norwegian Parliament.