There is no international or regional human rights instrument which specifically deals with the right of indigenous peoples to their ancestral lands. Instead, the relevant provisions on this issue are scattered in various documents. ILO Convention no. 169 concerning indigenous and tribal peoples in independent countries dedicates one specific section on land which includes the government’s obligation to respect the indigenous peoples’ special relationship with their lands as well as to recognise their rights of ownership and possession over the traditional lands. The UN Declaration on the Rights of Indigenous People obliges the government to ensure that there is no action taken over the traditional land of the indigenous people without their free, prior and informed consent. ‘Free’ means the consent should be given by the community without any force, intimidation, manipulation, coercion or pressure by any government or company; ‘prior’ means the indigenous peoples’ consent should be asked prior to government allocating land for particular land uses and prior to giving approval for specific projects. It is also important that the indigenous community is well informed, that is, given all the relevant information in a language they understand and having access to independent information.
In addition to provisions which are directly related to indigenous peoples’ right to land, there are some other indirect but relevant provisions in regional and international instruments. The most common provision to use is concerning the right to property. The Inter-American Court of Human Rights (the IACtHR) was the first human rights body which interpreted the right to property to be understood as to include the right of indigenous people to communal property and not merely the right to private property. A year after the IACtHR’s judgment, the African Commission on Human and Peoples’ Rights (the ACHPR) found that Nigeria had violated the right to property of the Ogoni people due to its condoning and facilitating violent attacks on and destruction of Ogoni villages by oil corporations in Ogoniland. In its 2010 landmark decision on the Endorois case, the ACHPR also found that the Kenyan government’s dispossession of the Endorois people’s ancestral land amounted to a violation of the right to property as enshrined in Article 14 of the African Charter on Human and Peoples’ Rights.
Indigenous peoples have such a strong relationship with their land that the possession and access to the land is a precondition for them to survive and enjoy their fundamental rights. When indigenous peoples are denied access to their land, therefore, it is not only their right to land or right to property that is violated but often also other rights. In addition to a violation of the right to property, the ACHPR found in the Endorois case that the government of Kenya had violated the Endorois people’s right to practice their religion as the contested territory in this case was ‘of fundamental religious significance to all Endorois.' It also ruled that a violation of the right to culture had occurred, since eviction from Endorois’ sacred lands prevented them from maintaining cultural practices, holding that ‘the restriction of cultural rights could not be justified, especially as no suitable alternative was given to the community.' The decision also found violations of the right to natural resources and the right to development in relation to the Kenyan government’s subsequent use of the contested land, without seeking the Endorois’ consent.
The Committee on Economic, Social and Cultural Rights (the CESCR) has highlighted in its General Comment on the right to health that displacement of indigenous people against their will from their traditional territories ‘has a deleterious effect on their health.' In the Inter-American system, the IACtHR has established the jurisprudence that the denial of indigenous peoples’ right to their traditional land is a violation of the right to life as guaranteed in Article 4 (1) of the American Convention on Human Rights.
The Office of the High Commissioner for Human Rights and UN Human Settlements Programme has also published a joint report which, inter alia, draws the links between indigenous peoples’ access to their land, the right to self-determination and the right to housing. According to the report,
‘[t]he dispossession of indigenous peoples’ from their lands has robbed them of the ability and opportunity to use their own resources to control and determine their economic, social and cultural development. If they had access to their own land and control over their own and public resources, they would be in a better position to solve their housing problems themselves.'
A community does not have to be indigenous to the territory they inhabit in order to have the right over the land. In Moiwana Community v Suriname, the IACtHR upheld that Moiwana Community was entitled to the land they inhabited even though it was undisputed that they were not indigenous to the region. This interpretation was reaffirmed in the case of Saramaka People v Suriname few years later.
Regional and international instruments protecting land rights
- The UN Declaration on the Rights of Indigenous People, Article 8 (2) (b), Article 10, Article 18, Article 19, Article 26, Article 29, Article 30;
- American Convention on Human Rights (Pact of San Jose), Article 4 (right to life), Article 21 (the right to property)
- African Charter on Human and Peoples’ Rights, Articles 19 – 24
- ILO Convention No. 169 concerning indigenous and tribal peoples in independent countries, Articles 4, 6, 7, 13 – 19
- ILO Convention No. 111 concerning discrimination (employment and occupation), Article 1 (3)
- International Convention on the Elimination of All Forms of Racial Discrimination, Article 5 (d) (v)
- General Recommendation No. 23 on Indigenous People, Committee on the Elimination of All Forms of Racial Discrimination
- International Covenant on Civil and Political Rights, Article 27
- International Covenant on Economic, Social and Cultural Rights, Article 1 on self-determination
- Convention on the Elimination of All Forms of Discrimination against Women, Article 14
- European Convention on Human Rights, Article 8
- Protocol No. 1 to the European Convention on Human Rights, Article 1
- Mayagna (Sumo) Awas Tingni Community v Nicaragua, Inter-American Court of Human Rights, 2001
- Maya Indigenous Community of the Toledo District v Belize, Inter-American Commission of Human Rights, 2004
- Yakye Axa Indigenous Community v Paraguay, Inter-American Court of Human Rights, 2005
- Moiwana Community v Suriname, Inter-American Court of Human Rights, 2005
- Sawhoyamaxa Indigenous Community v Paraguay, Inter-American Court of Human Rights, 2006
- Saramaka People v Suriname, Inter-American Court of Human Rights, 2007
- Xakmok Kasek Indigenous Community v Paraguay, Inter-American Court of Human Rights, 2010
- SERAC v Nigeria, African Commission on Human and Peoples’ Rights, 2002
- Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous People, 2007
- Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, African Commission on Human and Peoples’ Rights, 2010
- Poma Poma v Peru, Human Rights Committee, 2009
- Dogan and others v Turkey, European Court of Human Rights.
 ILO Convention No. 169 concerning indigenous and tribal peoples in independent countries, opened for signature June 26, 1989, part. III.
 Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua, para. 148, Merits, reparations and costs, Series C No. 79, August 31 2001.
 SERAC v Nigeria, Comm. No. 155/96, p. 15, May 27, 2002.
 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, Comm. No. 276/2003, para. 79, 2010.
 Id., para. 249.
 African Charter on Human and Peoples’ Rights
 General Comment No. 14 on the right to health, para. 27, Committee on the Economic, Social and Cultural Rights, UN Doc. E/C.12/2000/4.
 See, for instance, Case of the Yakye Axa Indigenous Community v Paraguay, para. 160 – 178, Merits, reparations and costs, Series C No. 125, June 17 2005.
 Indigenous peoples’ right to adequate housing: a global overview, p. 10, UN-HABITAT and OHCHR, 2005.