Despite a recent law recognizing and protecting the rights of Indigenous Peoples, the post-independence laws of the Democratic Republic of Congo (DRC) have dispossessed, and continue to dispossess, Indigenous Peoples of their customary land rights. Collective and customary property rights are enshrined in the DRC Constitution; however, in practice there is little to no recognition or protection. This is because land statutes work in cross-cutting ways to deny Indigenous Peoples the formal legal title to their traditional lands, and without title they are vulnerable to dispossession by development or conservation. In the absence of a land tenure system establishing clear collective ownership rights, “community forests” represent an alternative strategy or pathway for Indigenous Peoples to secure their customary rights over their forests and their lands (the local communities’ forest concessions, CFCLs). Despite some successful cases of securing land tenure through the CFCLs, inaccessible legal requirements and difficult procedures make these a problematic pathway for land justice. This chapter sets out recommendations for strengthening land tenure and CFCLs.

Since independence in 1966, the Republic of Botswana in southern Africa has had a long history of democratic elections. Botswana also has one of the highest populations of San peoples in the region, who have faced discrimination and marginalization for centuries. The San, who consider themselves to be Indigenous Peoples, are not accepted as such by Botswana’s government, which holds that all its citizens are Indigenous. San, who number some 60,000 in Botswana, have faced severe difficulties in getting access to land and natural resources. This chapter describes some of the processes of dispossession that San have faced. While some lands have been set aside as remote area settlements, these areas are not solely for San people. Communal land in the country is alienable, and there are no legal guarantees to land for San and other minorities. The expansion of the livestock, agriculture, tourism and mining industries have also had impacts on San people and their neighbors. San have responded to these situations by organizing non-government organizations (NGOs), lobbying for their rights nationally and internationally, and going to the High Court with legal cases, some of which have been successful. The legal cases involving the Central Kalahari San, in particular, have set international precedents – for example, to the human right to water – which have global relevance. However, the government has not honored many of the High Court judgments, leaving the San in a position where their land and resource rights are still precarious.

The year 2021 saw record violent dispossessions of Indigenous Peoples across Paraguay. Once heralded as an early adopter of Indigenous land rights and legal protections, Paraguay is now a site of contentious land politics that have garnered international attention and litigation. In this chapter, we draw from over forty years of collective experience working on and researching Indigenous land rights in Paraguay – from litigation before the Inter-American Court of Human Rights to ongoing advocacy with communities – and we trace the major legal achievements and document the ways that land rights have been challenged and threatened. We advance a theory of “pendulum policies” for land rights to trace the shifts in state-Indigenous relations, manifesting today as an implementation gap where de jure land rights are typically undermined in practice by state and private interests. In this chapter, we show how the role of international law and strategic litigations have pushed the pendulum from violations towards justice, yet we remain cognizant of the threats, from land renting to direct violence, which push the pendulum back towards violations. This chapter provides readers with a clear overview of Indigenous land rights in Paraguay, and offers recommendations for pushing the pendulum towards land justice over the next decade.

This chapter compares the early and middle encounter periods in eastern Canada to the ninteenth-century encounters in Australia and British Columbia. The chapter documents two distinct approaches to Indigenous land rights taken by the British Crown, with important implications for dispossession and recognition and reclamation of land rights. Because valid title to real property in eastern Canada primarily rested on good title from an original Indigenous seller, Indigenous rights to land were largely honored. Precisely the opposite situation played out in the west, where valid setter title turned on the complete erasure of Indigenous interests in the land. This was accomplished through the Torrens system of land-title registration, which erased Indigenous land rights in ways unimaginable to colonists along the east coast of the Americas where English law treated Indigenous lands as cognizable property interests. The chapter then focuses on the contemporary distribution of land rights in British Columbia to illuminate the continuing effects of the Torrens system of land-title registration on Indigenous land rights.

This chapter details the fragmented nature of the last sixty years of Aboriginal land repossession across Australia, both in terms of the nature of the rights and the level of restitution. Exploring the limited and uneven national Aboriginal land rights picture in 2024, we argue for an appreciation of the federal dimension of land rights policymaking. Uneven land restitution has resulted not just from spatially varying degrees of land commodification and the differing trajectories of land rights movements, although these were crucial. We aim to demonstrate that shifting state–Commonwealth (or Federal) relations within the Australian federation – crosscut against differing support from states and Commonwealth governments over time, and differing Commonwealth Government attitudes to federalism – led to a spatially uneven set of legislative land rights regimes across Australia. To do so, we narrate the varied responses to the Aboriginal land rights movement across the country in the wake of the Woodward Royal Commission in 1973 with an eye to the federal dimension. We argue that while the Whitlam, Fraser and Hawke governments from 1972 to 1991 all failed to legislate national land rights, they did so for very different reasons, leaving the land rights agenda to the states. Ultimately, it was the centralizing power of the High Court that brought about a national but inadequate and partial resolution to the Aboriginal land question. Finally, we provide a series of maps and tables describing the jurisdictional variation in rights and interests in land restored to Indigenous Peoples at present.

The legal recognition of Indigenous Peoples’ collective land rights is contentious in Colombia. There are enduring land disputes between state actors and Indigenous communities. Land rights policies have passed through several political cycles, but these have typically been poorly implemented, routinely violated by state actions, and often rolled back with new legislation. The 1991 National Political Constitution (NPC) transformed Indigenous-state relations, where for the first time in Colombia’s history, the collective cultural and land rights of Indigenous Peoples were recognized and protected in the country’s supreme law. To date, Indigenous Peoples have secured exclusive ownership rights to over 33 million hectares of collective lands, or 28 percent of the country. However, most Indigenous lands were titled before the 1991 NPC, which was constrained in its promise by a long-lasting internal armed conflict (among other factors). A 2016 historic Peace Agreement between the government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas promised to address the root cause of the conflict: land ownership disputes. This agreement has yet to resolve the land problem. Taking a historical perspective, this chapter analyzes the structural political and legal barriers to Indigenous land rights in Colombia. The chapter examines the interaction of the Peace Agreement with land rights laws and explores the strategies of Indigenous Peoples to secure and safeguard their land rights in this new context. The chapter concludes with recommendations for strengthening land rights across the nation.

Concluding chapter that synthesises the experiences from all the book, and relates these to the Sami land rights journey.

Over the last few decades, the concept of Indigeneity has gained traction in Cambodia and Thailand, partially because of its potential to assist Indigenous Peoples in gaining more control over contested lands and forests. The Cambodian government recognizes Indigenous Peoples and their communal land titles. Since 2009, when a sub-decree was issued for registering Indigenous communities and their lands, dozens of villages in northeastern Cambodia have obtained communal land titles. The government of Thailand, however, does not officially recognize the existence of Indigenous Peoples. Nevertheless, the concept of Indigenous Peoples is gaining support in Thailand. Over the last few years, Indigenous activists in both countries have increasingly engaged in electoral politics. The Cambodia Indigenous Peoples’ Democracy Party (CIPDP) contested the commune and national elections of 2017 and 2018, respectively. In Thailand, Indigenous activists have also become more involved in electoral politics, especially during the 2019 national elections, when the first ethnic Hmong person was elected to Parliament. This Indigenous engagement in electoral politics represents a new strategy to gain more cultural and language rights at the legislative level, as well as tenure over land and other natural resources.

Since 1862, Indigenous land tenure in Aotearoa New Zealand has been regulated by statute law. The early Native Land Acts were aimed at alienating Māori from their land. A permanent Native Land Court was established in 1865 to identify who held customary title to land and to convert that title into fee simple, which could then be freely bought and sold. This process facilitated dispossession. The Native Land Court eventually became the Māori Land Court and since the enactment of Te Ture Whenua Māori/Māori Land Act, 1993 (TTWM), the legislative regime, rather than facilitating alienation, has placed significant constraints on the sale of Māori freehold land. Alongside the constraints on alienation, the TTWM provides for a range of statutory trusts particular to Māori freehold land and continues the significant supervisory powers of the Māori Land Court in the administration of Māori freehold land. A separate statutory regime now recognizes some limited customary rights in the coastal marine area. One further area that has a bearing on the nature of Māori land rights is the settlement of historical claims based on Crown breaches of Te Tiriti o Waitangi (the Treaty of Waitangi). Since the early 1990s, the Crown has been engaged in a systematic programme of direct negotiation with Māori groups to settle historical claims. These settlements usually involve the return of some Crown land to Māori. However, while this land is held for the collective benefit of the community, it is not usually returned as Māori freehold land, which would be subject to restrictions under TTWM, such as the constraints on the alienation of Māori freehold land. This chapter examines the impact of the current legislation for recognizing, reclaiming and governing Māori land and property rights and considers how well the law aligns with traditional Māori land tenure or otherwise meets the cultural imperatives of Māori communities in their relationships with whenua (land), with recommendations for advancing land as tāonga tuku iho (a treasure that connects current generations with their ancestors and future generations).

Morocco has experienced numerous ethnic shifts throughout its long history, and a succession of human populations, cultures, and legal codes have strongly molded the different traditions of the country. This paper focuses on High Atlas Amazigh Peoples, who are deeply intertwined with their local environment through the agdal system, a customary institution of territorial and natural resource governance. The agdal-like systems are centered in the control and resilient management of a myriad of natural resources but most importantly pastures, forests, and water, and in the face of constant uncertainty and scarcity, support the Amazighs to adapt and preserve their rights and biocultural diversity in an increasingly globalized context.

Land and forests are integral to India’s Adivasi (Indigenous) Peoples. Lands provide sustenance and livelihoods, are a symbol of social status and dignity, and are central to the Adivasi “philosophy of life.” This chapter analyzes the various nuances of Adivasi land rights in India. It discusses the Adivasi land tenure systems, legal measures for protecting and allocating land, land holding patterns, the nature and scale of Adivasi land dispossession, and the strategies that the Adivasis have adopted to advance and safeguard their land rights. It is argued that, despite constitutional and statutory provisions and various policy measures to protect, promote, and secure Adivasi land rights, they increasingly experience land dispossession in different forms – reflecting an “implementation gap” in practice. This chapter concludes with recommendations for safeguarding Adivasi land rights, such as collaboration between Adivasi movements and civil society organizations, consistent governance measures for different land rights regimes (such as Sixth Schedule in Fifth Schedule Areas), and independent monitoring agencies to maintain accountability on land rights duties.

In Malaysia, three ethnic groups identify as “Indigenous Peoples”: the heterogeneous Peninsular Malaysia Orang Asli, natives of Sabah, and natives of Sarawak. Malaysia’s hybrid legal system confers differing constitutional, statutory, and common law rights and privileges to Indigenous Peoples, which present distinct yet shared experiences of their land rights. These Indigenous groups were granted differing levels of constitutional privileges during Malaysia’s constitutional formation, which resulted in divergent written laws for the protection and recognition of their customary lands and resources. These differing laws and histories have functioned to dispossess these communities of their traditional lands, territories, and resources in their own ways. The strategy of litigation has afforded Indigenous communities some recourse for gaps in the written law but common law development of such rights and the court process have equally proven to be a barrier in some cases. Although international commitments to the sustainable management of resources have increased possibilities for the inclusion of Indigenous communities in matters concerning their lands and resources, constitutionally-entrenched legal privileges have yet to translate to the effective protection and recognition of traditional Indigenous lands and resources in Malaysia.