Dispossession and Strategies to Safeguard Land Rights

Across the world there are countless stories of dispossession. This chapter focuses on the experience of the Yolngu (or Yolŋu) people of Yirrkala to illuminate this pattern of dispossession, the strategies used to protect and reclaim lands, and the processes set in place by the state for recognizing and reclaiming land rights.

For tens of thousands of years, Yolŋu people have lived at Yirrkala, by the rich Arafura Sea, and today it is part of the Northern Territory of Australia. Indigenous Peoples, like the Yolŋu, have occupied the Australian continent for at least 65,000 years, reflected in archaeological evidence, the ongoing cultural practices, and the profound Indigenous connection with “country” (Clarkson et al., Reference Clarkson, Jacobs, Marwick, Fullagar, Wallis, Smith, Roberts, Hayes, Lowe, Carah, Florin, McNeil, Cox, Arnold, Hua, Huntley, Brand, Manne, Fairbairn, Shulmeister, Lyle, Salinas, Page, Connell, Park, Norman, Murphy and Pardoe2017).Footnote ¹ For generations, the Yolŋu traded trepang (sea cucumber) and other items to Macassan seafarers, who came south each trading season from Sulawesi. The arrival of Europeans to Yolŋu territory in the 1870s, however, was different from their contact with the Macassans. Britain had asserted sovereignty to parts of southern Australia in 1788, and colonization, like elsewhere, was marked by violence, denial of Aboriginal rights to land, and the coercion of “natives” by the state. The settlers brought with them an insatiable hunger for land and resources to feed ambitions of social and economic mobility.

The newly drafted Australian Constitution, formed at federation in 1901, made no mention of the country’s first peoples’ laws and their land ownership systems, like that of the Yolŋu.Footnote ² In 1931, Yirrkala became part of the Arnhem Land Aboriginal reserve – an area for exclusive occupation by Indigenous Peoples and their use. At around 90,000 square kilometers in size, the Arnhem Land reserve included hundreds of clan groups, including the Yolŋu. In 1934, a Methodist mission was established at Yirrkala, following a lethal confrontation between the Yolŋu and Japanese pearlers (Morphy, Reference Morphy, Fay and James2008). Growing violence meant the mission station became a safe place for Yolŋu (Morphy, Reference Morphy2005). In 1963, the Yolŋu and the missionaries received word that the federal government in Canberra, located more than 4,000 kilometers south, had granted a mining lease to over 360 square kilometers of Yolŋu land near Yirrkala.

To stop the development of a bauxite mine in their homelands, the Yolŋu rallied and petitioned the government to recognize their land ownership at Yirrkala. The petition, written in Yolŋu Matha and English on bark, known as the “Bark Petition,” was tabled before the House of Representatives in August 1963.Footnote ³ A parliamentary committee of inquiry considered the issue of Yolŋu land ownership at Yirrkala, but the mine lease was granted anyway. The Yolŋu then commenced an action in the Northern Territory Supreme Court, claiming proprietary native title rights to the mine site. In their claim, the Yolŋu sought declarations to occupy and use these lands free from outside interference. This was Australia’s first native title or land rights case.

The decision in Milirrpum v. Nabalco Pty. Ltd.Footnote ⁴ was handed down by Justice Blackburn in 1971. Blackburn reasoned that when British settlers arrived, Australia was terra nullius or “nobody’s land.”Footnote ⁵ Under British colonial constitutional law, the absence of prior possession meant the Crown gained absolute title to the land and English law applied (to the Yolŋu as well, despite them not being recognized as British citizens). British law effectively filled a legal vacuum across Australia. This legal concept of terra nullius was applied in other parts of the world, from western Canada to the Democratic Republic of Congo (DRC), to legitimate the transfer of land to colonial governments and to settlers.

While Justice Blackburn acknowledged Yolŋu evidence of an elaborate system of rules and customs related to land, he characterized these rules and customs as spiritual or religious, rather than proprietary. The Yolŋu, he concluded, belonged to the land, but the land did not belong to them. He wrote: “On the foundation of New South Wales, therefore, and of South Australia, every square inch of the territory in the Colony became the property of the Crown.”Footnote ⁶ There was no Yolŋu right to land, and the mine could proceed.Footnote ⁷

Recognition and Reclamation

The winds of political and social change swept across much of the world during the 1960s and 1970s. Indigenous Peoples and ethnic minorities protested and advocated for basic citizenship rights, which were previously denied to them (Anaya & Williams, Reference Anaya and Williams2001). Against a backdrop of Indigenous resistance to historical and ongoing dispossession, the settler-colonial governments commenced (and in some cases recommenced) the project of “settling” with Indigenous Peoples in the 1970s. Across the globe, different pathways were developed for the recognition of Indigenous Peoples and their land rights and processes for the reclamation of their land. For example, in the United States, the Alaska Native Claims Settlement Act 1971 provided title to lands for Alaskan Native corporations.Footnote ⁸ As well, the modern treaty process commenced in Canada in 1973, after the Supreme Court of Canada’s decision in Calder v. British Columbia, recognizing that Aboriginal title had likely survived the British Crown’s assertion of sovereignty.Footnote ⁹

Spurred on by l’esprit du temps, the failure of the Yolŋu’s land rights case (Milirrpum), and the Gurindji people’s “walk off” at the Wave Hill pastoral station in the Northern Territory, a report into recognizing Aboriginal land rights was commissioned by the Australian government in 1973. The Aboriginal Land Rights Commission, headed by the Yolŋu’s counsel in Milirrpum, Edward Woodward, recommended a statutory land rights scheme for the Northern Territory. This scheme became federal legislation applying only to the Northern Territory, the Aboriginal Land Rights (Northern Territory) Act 1976, and remains the high-water mark for land rights in Australia. This statute provides a real property right to exclusive ownership and use of lands for successful claimants, with consent required for any state encroachments. Lands are governed through statutory land trusts, reflecting in part, Indigenous modes of social organization, and were designed in the spirit of “self-administration” (Neate, Reference Neate1989).Footnote ¹⁰ According to Labour Party powerbroker H. C. “Nugget” Coombs, this land rights legislation was critical for ensuring Indigenous Peoples in the Northern Territory did not become a “dependent, landless proletariat with no other options” (Reference Coombs1993, p. 3). Ironically, the Aboriginal Land Rights Act took effect on January 26, 1977, or Australia Day, the day marking the anniversary of British settlement in the country – a day referred to as Invasion Day or Survival Day by Indigenous Peoples and their allies.

Later efforts to have a national land rights framework across Australia were thwarted, though the existence (or survival) of native title (customary land rights) was recognized by the High Court of Australia in the 1992 Mabo decision, which Dorsett and McVeigh argued became the “site of engagement of Australian common law and jurisprudence with Indigenous law and jurisprudence” (Reference Dorsett and McVeigh2012, p. 471); this decision opened the door for further native claims across the continent. However, this ruling was codified with the passing of the Native Title Act 1993, where subsequent amendments to this statute and jurisprudence have restricted the breadth and scope of Indigenous laws to preserve Crown sovereignty, and with it the recognition and reclamation of land rights (Foley & Anderson, Reference Foley and Anderson2006).

Recognition: Who Are Indigenous Peoples?

Indigenous Peoples have played a foundational role in the growth of “rights” dialogue, both at domestic and at international scales, advocating for rights to self-determination and a recognition of their land rights (among other rights) (Anaya & Williams, Reference Anaya and Williams2001; Xanthaki, Reference Xanthaki2007). Gaining momentum in the 1960s and 1970s, Indigenous Peoples advocated for their “continued survival as distinct communities with historically based cultures, political institutions, and entitlements to land” (Anaya & Williams, Reference Anaya and Williams2001, p. 34). While there is no single universal definition of Indigenous Peoples, at the international level, Jose Martinez Cobo (Reference Martinez Cobo1986–7) developed a working definition, taken up by the United Nations, as those peoples “having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, [and] consider themselves distinct from other sectors of the societies now prevailing on those territories … They … are determined to preserve, develop and transmit to future generations their ancestral territories and, their identity.”

Adding to this, Erica-Irene Daes (Reference Daes1996) described that Indigenous Peoples have an experience of subjugation, marginalization, dispossession, exclusion, or discrimination. On every inhabited continent there are Indigenous Peoples, who are often treated by the state as unique political and individual entities (Tully, Reference Tully, Ivison, Patton and Sanders2000). It is typical for the state to establish the processes for the recognition of Indigenous Peoples, the nature and scope of any rights (such as land rights, rights to hunt and fish), and safeguards on these rights from encroachment.Footnote ¹¹ For example, the common law-settler states of Canada, Australia, New Zealand, and the United States (the CANZUS states) established “corporate rights vested to historically continuous indigenous groups” (Gover, Reference Gover2015, p. 345), which are held by these collectives in perpetuity. Povinelli (Reference Povinelli2002) described this phenomenon as the “cunning of recognition,” where the state establishes “authenticity tests” for recognizing Indigenous Peoples and their rights, assessing and validating claims to Indigeneity and to land rights through the executive and the courts. Coulthard connects this phenomenon to the “structural and psychoaffective facets of colonial domination” (Reference Coulthard2014, p. 49), “where colonial rule does not depend solely on the exercise of state violence, its reproduction instead rests on the ability to entice Indigenous Peoples to identify, either implicitly or explicitly, with the profoundly asymmetrical and nonreciprocal forms of recognition either imposed on or granted to them by the settler state and society” (Reference Coulthard2014, p. 25).

In any case, rights by themselves are insufficient, being “only effective to the extent that they are morally and institutionally enforceable” (Ivison, Reference Ivison2003, p. 338). Peoples must also have the capabilities to exercise these rights, or the freedoms, agency, health and wellbeing, and the opportunities to put these rights into practice (Sen, Reference Sen1981).

Land Rights: Recognition and Reclamation Processes

Indigenous Peoples have and continue to be dispossessed of their lands, displaced, and discriminated against. Despite this, they continue with their advocacy and action for redress and protection against further transgression. Gilbert defined land rights as rights to “occupy, enjoy and use land and resources; restrict or exclude others from land; transfer, sell, purchase, grant or loan; inherit and bequeath; develop or improve; rent or sublet; and benefit from improved land values or rental income” (Reference Gilbert2013, p. 115). Land rights are foundational for basic human rights, for without land rights the basic human rights to food, housing, security, and religion or culture cannot be fully achieved (Gilbert, Reference Gilbert2013). Land rights, according to Ivison, flow to Indigenous Peoples not as racial or cultural entities, but as “political, or perhaps more precisely, as constitutional ones” (Reference Ivison2003, p. 334), reflecting the pre-existing laws of Indigenous Peoples and their systems of land ownership.

There are generally three parts to Indigenous land rights: (1) they are typically a collective and perpetual right held by an Indigenous collective, who have a pre-existing legal connection to a territory, for members to exclusively occupy, possess, and use the land. Once reclaimed, often under state-defined processes, this land is typically inalienable, unless transferred or sold to the state, and the state typically has powers to encroach upon land rights in special circumstances with or without the consent of the landowners; (2) the landholding group determines membership to the collective, and while there are collective rules and norms that determine membership, the state also often establishes (or at least affirms) membership (Gover, Reference Gover2010; Nikolakis et al., Reference Nikolakis, Akter and Nelson2016); and (3) there is a right to be self-determining – in the sense that landowners can govern their land in their own ways, putting this land to use for collective and individual benefit, and typically with responsibilities and duties to maintain the land for future generations.Footnote ¹³

While there has been considerable discussion around land rights at the international level, there is “strictly speaking … no human right to land under international law” (Gilbert, Reference Gilbert2013, p. 115).Footnote ¹⁴ Thus, there is a considerable degree of variability across the world for how land rights are recognized, the processes for reclamation, and the protections and safeguards on land rights. The chapters in this book demonstrate a number of approaches for recognition and reclamation of Indigenous land rights: (1) constitutional provisions; (2) statutes; (3) customary, common, civil, or Islamic laws; (4) policies, decrees, or other orders; and (5) treaties and self-government agreements.

1. 1. Constitutional approaches for recognizing Indigenous Peoples and their land rights exist across diverse jurisdictions, from Canada to the Democratic Republic of Congo (DRC), to Brazil and Colombia (among others). As constitutions are the supreme law in many jurisdictions, and typically require public referenda to be changed, constitutional provisions offer the most secure and powerful mechanism for recognizing and protecting land rights (Nikolakis & Hotte, Reference Nikolakis and Hotte2020). However, enforcing these provisions on the ground has typically proven challenging, as documented in the chapter on the DRC by Lassana Koné (this volume), where the “legal dualism” in the constitution recognizing customary and state land rights is not given effect in practice – which perpetuates tenure insecurity for Indigenous Peoples, and suggests a robust institutional framework must be built around constitutional provisions to make these effective.

2. 2. Statutes are the most common approach for recognizing and restoring land rights; for example, New Zealand codified and restricted customary or native title in the Te Ture Whenua Māori/Māori Land Act 1993 (TTWM), and later in the Marine and Coastal Area Act 2011. Australia has the federal Native Title Act 1993, as well as state and territory land rights statutes like the Aboriginal Land Rights (Northern Territory) Act 1976; India has the Forest Rights Act 2006; Norway has the Finnmark Act 2005; and other examples include Botswana, Chile, Honduras, and Colombia. Statutes are binding and instrumental, and they are more secure than policies or jurisprudence. However, statutes can be repealed or amended like the situation in Australia or New Zealand, or simply ignored by government or other actors, or interpreted differently than their intent by courts (Nikolakis & Hotte, Reference Nikolakis and Hotte2020), and there are numerous examples across the world of statutes stripping away or diluting land rights (for example, the United States’ American Indian treaties).

3. 3. Customary, common, civil, or Islamic laws are legal principles defined or developed by a collective’s authorized institutions. Customary laws are the laws, practices, and customs developed by Indigenous societies that give expression to land ownership and use. Common law is developed by judges. The decisions or case law offer precedential authority; however, this authority can be overruled by a superior court, distinguished, or codified by the legislature like the Australian Native Title Act that codified the doctrine of native title in the Mabo decision. Civil law countries have codified laws around property and land rights, while Islamic laws are those interpreted from scriptures and other legal sources by jurists (muftis) and are typically drawn from codes today. In pluralistic legal systems, different approaches may operate in parallel; for instance, customary law may be incorporated into the common, civil or Islamic law in a form of legal dualism, with examples from the DRC and Morocco in this book. There are instances where the courts are taking a more expansive view on incorporating customary Indigenous law in Aboriginal or native title cases, such as in Canada and Australia (what Roughan, Reference Roughan2009, described as a form of “legal association”).

4. 4. Policies, decrees, and other orders are those developed by the executive arm of government. These policies may be substantive, such as establishing a land tenure and land titling policy, or they may be symbolic, like recognizing Indigenous prior occupation, without implementing land rights. Policies and decrees are not binding in the same way the constitution, statute, and precedent are, but they can reshape norms and practices, which may be a preliminary step towards creating law.

5. 5. Written treaties set out the terms of settlement between Indigenous nations and settler-colonial governments, the most well-known perhaps being the American Indian treaties recognizing the US tribes as “domestic dependent nations,” concluded up until 1871. In Canada and New Zealand, historic treaties were signed (and typically not honored), and modern treaty processes have been established that provide for a distribution of lands, compensation, and self-governance powers (Borrows, Reference Borrows2006). There has also been growing public attention on treaties more recently in Australia. Canada has concluded self-government agreements, such as with the Westbank First Nation, and a Sechelt First Nation self-government agreement was legislated in 1986. Both these agreements in British Columbia set out the terms of the governing powers of the First Nations and redistribute lands back to the First Nations.

Many countries are a hybrid of the different mechanisms listed above; for example, Canada and Malaysia have constitutional provisions, engage in treaties or self-government agreements with Indigenous Peoples, and have common-law recognition of land rights. Regardless of the approach, it is typically the claimants who have to prove their rights through procedures laid out and heard by the state – and their struggles too often yield isolated, poorly resourced, and meagre gains. Typically, the customary laws and institutions of Indigenous Peoples are not reflected in land rights regimes.

Latin America

The Latin American countries typically recognize Indigenous Peoples and their customary land ownership in constitutions. The Elusive Promise of Indigenous Land Rights in Paraguay: Achievements, Challenges, and Current Trends, by Joel E. Correia, Rodrigo Villagra-Carron and Marcos Glauser, traces the country’s major legal achievements on land rights. They note that despite these protections, 2021 saw record violent dispossessions of Indigenous Peoples in the country. The authors develop the term “pendulum policies” to trace the shifts in state-Indigenous relations from “violation” to “justice” and then back to “violation,” highlighting a persistent “implementation gap” in land rights laws. The role of international law and strategic litigation has pushed the pendulum towards “justice,” yet serious threats, from land renting to direct violence, remain.

Article 231 of Brazil’s constitution guarantees Indigenous Peoples the collective right to return to and occupy their traditional lands, consistent with international obligations. Professors Fernanda Frizzo Bragato and Jocelyn Getgen Kestenbaum write in Recognizing and Reclaiming Indigenous Peoples’ Constitutional Land Rights in Brazil: Challenges and Opportunities that despite this constitutional guarantee, there has been an active campaign of land grabs and violence that has undermined the country’s land rights framework. Indigenous Peoples have litigated to reclaim and protect their lands, but the courts have applied a “temporal framework doctrine” (“tese do marco temporal”) to deny Indigenous People their rights to ancestral lands if they did not occupy and control those lands at the creation of the 1988 Brazilian Constitution. A new political administration may reverse this trend.

In the chapter Indigenous Peoples and Territorial Rights in Colombia: Advances, Challenges, and Setbacks in Implementation, Omaira Bolaños and Ricardo Camilo Niño (Arhuaco) describe how the country’s 1991 National Political Constitution (NPC) recognized Indigenous Peoples and their collective rights. However, most of the 33 million hectares of collectively held lands in Colombia occurred prior to 1991. A persistent internal armed conflict stalled land justice in the post-1991 period, fueled by land conflict. A 2016 Peace Accord sought to resolve land ownership disputes and maintain civil stability. The authors explore the legal framework and historical context that sustains land injustice in Colombia.

Chile does not have constitutional recognition of Indigenous Peoples – a situation that two recent constitutional reforms and referenda sought to remedy. Both of these referenda failed, and Indigenous Peoples and their land rights continue to be governed by the Indigenous Law of 1993. This statute has been slow to deliver land justice for Indigenous Peoples in Chile. Against this background, Alexandra Tomaselli’s chapter, Indigenous Land Rights in Chile: Dispossession, Misrecognition and Litigation, details how litigation, combined with direct action, has been an important and sometimes effective strategy for safeguarding Indigenous lands from development pressures.

Australia, Canada, and New Zealand

Australia, Canada, and New Zealand are among the common-law settler countries that have sought to reconcile with Indigenous Peoples and integrate them into their constitutional orders. In the chapter Aboriginal Land Rights in Australia: Neither National nor Uniform, Dr Francis Markham and Professor Heidi Norman (Gamilaroi Nation) argue that the return of an Aboriginal presence across all Australian landscapes since the 1960s is a significant transformation in the colonial geographic imagination and the dominant narratives of absence, erasure and denial. The chapter weaves together the fragmented approaches and innovations for recognizing and reclaiming Indigenous land rights across the country.

In Dispossession by Treaty, Dispossession by Statute: Indigenous Title in Eastern and Western Canada, Professors Daniel Diamond and Douglas Sanderson, both from the Opaskwayak Cree Nation in Canada, document how the Torrens land titling system, developed in Australia and adopted in British Columbia, was used to dismantle Aboriginal title, and enhance the fungibility of land to settlers. Most of the valuable land was appropriated through the Torrens system in British Columbia, where it has remained ineligible up to this point in time for Aboriginal title claims.

In Māori Land Law in Aotearoa New Zealand: Recognising Land as tāonga tuku iho, Carwyn Jones (Ngāti Kahungunu) and Sandra Cortés Acosta document a “legislative” approach to Māori land rights, which narrows their scope and leaves these rights vulnerable to changing political whims. They examine the development of the Te Ture Whenua Māori/Māori Land Act 1993 and the Marine and Coastal Area (Takutai Moana) Act 2011, which restricts customary or native title (focusing on recognition rather than reclamation), and thus are inconsistent with Māori relationships to whenua (land) and tikanga (law, values and practices). Jones and Cortés Acosta argue that a constitutional approach for recognizing and safeguarding land rights is critical for nurturing Māori relationships to land characterized as tāonga tuku iho (a treasure that connects current generations with their ancestors and future generations).

Africa and Asia

The concept of Indigeneity is contested across much of Africa and Asia. However, Indigenous Peoples across these continents are advocating for recognition as distinct peoples and for the return or protection of their lands. In his chapter Land Rights of Indigenous Peoples in the Democratic Republic of Congo: “First Come, Last Served,” Lassana Koné writes that the Democratic Republic of Congo’s (DRCs) constitution enshrines a “legal dualism” that recognizes both state and customary laws to land ownership. Yet, land laws continue to deny Indigenous Peoples a registered and indefeasible title to their lands, meaning they remain vulnerable to dispossession. Without secure tenure, several Batwa communities have procured community forest concession licences, which while only an incremental step towards land justice, offer some form of jurisdiction and standing over their territories. But accessing these concessions can be complex, limiting the effectiveness of this strategy for many Indigenous communities across the DRC. In 2022, the Law on the Protection and Promotion of the Rights of Indigenous Pygmy Peoples was passed, which aims to strengthen the land rights of Baka, Bambuti, and Batwa peoples. This law took effect in 2023, and while it is too soon to evaluate its performance, experience suggests implementation will be problematic.

In San Land Rights in Botswana: A Critical Analysis, Robert Hitchcock, Maria Sapignoli and Smith Moeti (G//ana San) document that the country’s 60,000 San peoples continue to hold fragile land and resources rights. While they are not legally recognized as Indigenous Peoples in Botswana, some lands have been set aside for the San people, like the remote area settlements. These communal lands are inalienable, though there are no guarantees to safeguard them. San have actively organized to strengthen their land rights through non-government organizations, lobbying for their rights nationally and internationally, and litigated in the High Court, where some cases have been successful. The Central Kalahari San legal decisions have in fact set international precedents for human rights to water. However, the Botswana government has not honored many of the High Court judgments, leaving San in a precarious position.

The Amazigh Peoples of Morocco’s High Atlas region are considered as the Indigenous Peoples of the region. Over millennia they have maintained their cultural identity as well as the agdal customary system, which governs their lands, pasture, water, and forests in an unforgiving climate. In the chapter by Ahmed Bendella (Amazigh) and colleagues, entitled Rights over Land among Amazigh Peoples in Morocco: The Case of the High Atlas, the authors examine the oral-based agdal system, which is embedded in a deep “socio-ecological” interdependency, and guided by the j’maa (local community assemblies) and customary law. They provide insight around the resilience of the agdal system in the face of shifting social, political, cultural and ecological forces.

The Indian constitution recognizes Adivasis, or India’s Indigenous Peoples. However, drawing from land tenure evidence, Professor Jagannath Ambagudia, in Adivasis and Land Rights in India: Dispossession and the “Implementation Gap,” shows the landholding patterns of Adivasis have been altered across the country, and land alienation has accelerated, leading to Adivasi insurgencies. To address this, Professor Ambagudia calls for a strengthened land rights framework in India, grounded in customary institutions and in the principle and process of free prior and informed consent.

In Legal Privileges and the Effective Recognition of Indigenous Land Rights: Lessons from Malaysia, Yogeswaran Subramaniam documents the diversity in constitutional privileges afforded to the Peninsular Malaysia Orang Asli, and the natives of Sabah and of Sarawak. While Malaysia’s courts have guarded the rights of these three recognized Indigenous Peoples, they have also been reluctant to expand these rights to reflect changing international Indigenous norms, such as free prior and informed consent, with implications for land rights. Subramaniam argues that a full implementation of land rights laws, combined with free prior and informed consent, is critical to protecting land rights in Malaysia.

In Cambodia and Thailand, Indigenous Peoples have used the political system to build support for their recognition and to assert collective land rights. But, according to Ian Baird in Indigenous Peoples and Electoral Politics in Thailand and Cambodia: One Strategy to Secure Land Rights in Contested Spaces, there has been mixed success through this strategy – though it appears to be the most effective option in contexts where Indigeneity is a contested concept.

A concluding chapter entitled Reclaiming Land Rights Under the Pressure of Nation States – Insights and Future Directions from Sápmi, written by Sámi lawyer Oula-Antti Labba, weaves together the key themes throughout the book, drawing on the Sámi experience. The conclusion traces the shared histories and modern realities of dispossession, processes for recognition and reclamation, strategies to reclaim lands, and persistent barriers to land rights, reflected in an “implementation gap.” The conclusion also offers directions for practice and future research on land rights.