{UAH} Fwd: Acoli, Lango, Teso, Madi Land Boards, Construction Campanies

On Thursday, October 25, 2012 7:14:14 AM UTC+3, BD_wanika wrote:

No single region in Uganda is currently ready for internatinal investment unless the conditions below are met!

I instead advise that Lango, Teso, Acoli and West Nile should independently do the following:

 

1. Have Construction companies – these companies should be owned by the states or people of Lango,Teso, Acoli and West Nile. Mandate is to have 1500 house constructed per year per region. That is 7500 dwellings or more every five years.There is a geometrical configuration that can followed in human settlement design to offer shared amenities among these new communities hence low cost and lively living.
   
2. Set up compact communities ~ 200 –250 people. MPS and chiefs must talk to people to move out of villages to organised communities. These well-organised communities have houses (houses must meet all urban regulations), and can be owned by individuals over a certain period of time, but remain the property of the states or people of Lango, Acoli and West Nile. Then install One digital telephone box, which can offer services to 250'000 lines at less that 200000/= free telephone call / annum. Low cost water facilities, kindergarten, primary schools, sports ground and most of it all – hygiene. That is the necessary infrastructure for basically Agricultural developed.
3. Land ownership – all land in Acoli, Lango, West Nile, Buganda, Teso or Busoga should revert to the community – Read the Law on Native Title. Therefore there should be Acoli Land Board, Lango Land Board, Buganda Land Board, Madi or Lugbara Land Board.
4. Vocational training and agro processing – in point B people must continue with their agricultural lifestyle and on top of that must be offered education in field in processing, post harvesting storage, marketing, transportation, hygiene  etc.
5. Using Katwe type resources, for Agro-processing facilities i.e machine fabrication should also be considered. Banyankole Cattle can also eat processed seed cake sometimes.

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Monday, 6 August 2012, 13:46

III. Protection of Indigenous Peoples' Rights to Land and Natural Resources by Inter-American Human Rights Instruments and U.N. Treaties Various human rights instruments of the OAS govern the adjudication of these cases now working through the Inter-American human rights system. In the Awas Tingni case, which arises from Nicaragua, the most important instrument is the American Convention on Human Rights, since Nicaragua is a party to that multilateral treaty, as are a majority of the OAS member states. The American Convention establishes both the procedures and substantive rights that govern the adjudication of complaints by the Inter-American Commission and Inter-American Court in relation to state parties to the Convention. As already noted, the three other cases are against OAS member states that are not parties to the American Convention, and thus the principal instrument for determining the applicable substantive rights for those countries in proceedings before the Inter-American Commission is the American Declaration on the Rights and Duties of Man. The Inter-American Court considers the American Declaration to articulate general human rights obligations of OAS member states under the OAS Charter, an organic multilateral treaty with the force of law.[34] Although neither the American Convention nor the American Declaration specifically mentions indigenous peoples, both include general human rights provisions that protect traditional indigenous land and resource tenure. These include provisions explicitly upholding the rights to property and to physical well being and provisions implicitly affirming the right to the integrity of culture. Thus, provisions of the American Declaration and the American Convention affirm rights of indigenous peoples to lands and natural resources on the basis of traditional patterns of use and occupancy, especially when viewed in light of other relevant human rights instruments and international developments concerning indigenous peoples. *** Top of Page 42 *** Other human rights instruments that bear directly on an assessment of the rights and corresponding obligations of the parties include two major U.N. human rights treaties, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Discrimination. Each of the states involved in the cases—Canada, Belize, Nicaragua, and the United States—is a party to the Covenant on Civil and Political Rights; and each, except for Belize, is a party to the convention against discrimination. Both of these UN human rights treaties include provisions that protect indigenous peoples' rights over land and natural resources. The Inter-American Commission on Human Rights has frequently interpreted the obligations of states under the American Convention and the American Declaration by reference to obligations arising from other international instruments.[35] The Commission has found a basis for this approach in article 29 of the American Convention, which states that "[n]o provision of this Conventiom diverse sources. A. The Right to Property Indigenous peoples' traditional land and resource tenure is protected by Article 21 of the American Convention on Human Rights, which provides: "Everyone has the right to the use and enjoyment of his property."[37] Similarly, article XXIII of the American Declaration on the Rights and Duties of Man affirms the right of every person "to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and the home."[38] The right to property affirmed in these two in- *** Top of Page 43 *** struments must be understood to attach to the property regimes that derive from indigenous peoples' own customary or traditional systems of land tenure independently of whatever property regimes derive from or are recognized by official state enactments. The Inter-American Commission on Human Rights has supported this interpretation of the right to property in its Proposed American Declaration on the Rights of Indigenous Peoples: 1. Indigenous peoples have the right to the legal recognition of their varied and specific forms and modalities of their control, ownership, use and enjoyment of territories and property. 2. Indigenous peoples have the right to the recognition of their property and ownership rights with respect to lands, territories and resources they have historically occupied, as well as to the use of those to which they have historically had access for their traditional activities and livelihood.[39] Excluding indigenous property regimes from the property protected by the American Convention and American Declaration would perpetuate the long history of discrimination against indigenous peoples.[40] Such discriminatory application of the right to property would be in tension with the principle of non-discrimination that is part of the Inter-American human rights system's foundation.[41] The traditional land tenure and natural resource use patterns asserted by the Awas Tingni Community of Nicaragua, the Maya in Belize, the Dann sisters of the Western Shoshone, and the Carrier Sekani Tribal Council in Canada are common to the indigenous peoples throughout the western hemisphere. Without depending upon official state enactments, such traditional land and resource use patterns create forms of property that are recognized and functional within and among indigenous communities. At the outset, it should be emphasized that indigenous communities in the Americas as elsewhere will define property rights according to their own unique traditions and customs. There is no "universal," or one-size-fits-all definition of "indigenous property rights," that the Inter-American system can arbitrarily settle upon. Because each indigenous community possesses its own unique social, political, and economic history, each has adapted and adopted methods of cultural survival and development suited to the unique environment and ecosystem inhabited by that community. As a result, each indigenous community creates its own customary laws for governing its lands and resources. This process of jurisgenesis means that indigenous socie- *** Top of Page 44 *** ties' property rights systems possess the same particularity and divergence that characterize the property rights systems of non-indigenous societies. Generally, however, among indigenous communities a group's particular system of land tenure is recognized as embodying a property rights regime. Within the corresponding system of indigenous peoples' customary norms, traditional land tenure generally is understood as establishing the collective property of the indigenous community and derivative rights among community members. An examination of indigenous peoples' own jurisprudence, including the jurisprudence of modern indigenous judicial institutions in the United States, reveals how decision makers in indigenous communities, or tribal judges, characterize the unique systems of property rights derived from their communities' land tenure systems. Today, more than 150 indigenous judicial systems function in the United States. These institutions are part of the self-governance structures of modern Indian nations or tribes, and they regularly apply and develop the concept of "tribal law" or "customary law" in their legal decisions. The United States legal system recognizes these decisions as authoritative and enforces them under principles of judicial comity and full faith and credit in the state and federal courts of the United States.[42] The legal interpretations and understandings of indigenous peoples' property rights, found in the growing corpus of published judicial opinions by these modern tribal courts, consistently emphasize the sui generis nature of the traditional land and resource use patterns that constitute forms of property in particular indigenous communities. The tribal courts of the Navajo Nation in the southwestern United States, for example, have articulated this principle of the sui generis character of property rights in their indigenous community in clear and illuminating terms.[43] The Navajo courts have consistently stressed that the property rights of the Navajo people derive from their unique cultural traditions and from Navajo land tenure. The Navajo Supreme Court explained the difference between Navajo land tenure and the land tenure system of the dominant United States society in the case of Begay v. Keedah: Traditional Navajo land tenure is not the same as English common law tenure, as used in the United States. Navajos have always occupied land in family units, using the land for subsistence. Families and subsistence residential units (as they are sometimes called) hold land in a form of communal ownership.[44] The Navajo courts have stressed that land includes both cultural and economic dimensions that are of crucial importance: *** Top of Page 45 *** There are valuable and tangible assets which produce wealth. They provide food, income and the support of the Navajo People. The most valuable tangible asset of the Navajo Nation is its land, without which the Navajo Nation would [not] exist and without which the Navajo People would be caused to disperse . . . . Land is basic to the survival of the Navajo People. While it is said that land belongs to the clans, more accurately it may be said that the land belongs to those who live on it and depend upon it for their survival. When we speak of the Navajo Nation as a whole, its lands and assets belong to those who use it and who depend upon it for survival—the Navajo People.[45] Thus, according to Navajo customary law, as with the customs and usages of many other indigenous communities, the ownership of land is vested in the indigenous community or group as a whole.[46] Navajo customary law does recognize, however, an individual property interest: Land use on the Navajo Reservation is unique and unlike private ownership of land off the reservation. While individual tribal members do not own land similar to off reservation, there exists a possessory use interest in land which we recognize as customary usage. An individual normally confines his use and occupancy of land to an area traditionally occupied by his ancestors. This is the customary use area concept.[47] Another characteristic of indigenous property rights is that they often are not conceptualized in exclusive terms, but rather as recognized regimes of shared use and property rights between groups. Indigenous communities, for example, may migrate over time and may have overlapping land use and occupancy areas. Such patterns are simply characteristic of indigenous peoples' land tenure and resource use and do not undermine the existence or determinacy of their property rights.[48] The International Labour Organization's Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries of 1989, expressly recognizes this principle. It requires its state parties to obey the following: "Measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities."[49] *** Top of Page 46 *** With their source in indigenous peoples' own customs and usages, and with characteristics that may diverge widely from property regimes that derive from state enactments, indigenous traditional and resource tenure regimes nonetheless constitute forms of property. The existence of indigenous property regimes does not depend on prior identification by the state, but rather may be discerned by objective evidence that includes indigenous peoples' own accounts of traditional land and resource tenure. Indigenous peoples possess unique knowledge about the lands and resources that they have traditionally occupied or used, and to which they accordingly have rights under their own legal systems, as well as under domestic and international law. International and domestic legal institutions have come to recognize and respect that indigenous peoples' own knowledge can effectively establish the existence, scope, and characteristics of their traditional land tenure. In the Awas Tingni Case, the Inter-American Commission on Human Rights determined that the Awas Tingni community has property rights to its traditional land, on the basis of maps and other documentation developed by the community itself with the assistance of an anthropologist.[50] Similar documentation is being presented to the Commission in the Maya, Dann, and Carrier Sekani cases. An increasing number of state legal systems now recognize indigenous peoples' oral history and their own documentation and mapping of their lands as evidence in legal proceedings determining land rights. In addition, expert testimony from anthropologists, geographers and other qualified scholars with relevant knowledge of indigenous peoples' customs and culture is also recognized by domestic legal systems as relevant to establishing indigenous peoples' property rights based on traditional systems of land tenure.[51] In Delgamuukw v. British Columbia,[52] the Canadian Supreme Court incorporated recognition of the customs of the Gitsxan and Wet'suwet'en band members into the common law of Canada. In reversing a lower court, which refused to credit oral testimony concerning the boundaries of the bands' ancestral homelands on the grounds that it was hearsay, the Canadian Supreme Court expressed grave concern that if oral history was not admitted to prove pre-contact claims, indigenous groups would find it impossible to provide evidence of their claims because their traditions are primarily oral.[53] The Canadian Supreme Court ordered a new trial, stating that the oral testimony, which consisted of traditional songs containing descriptions of the ancestral *** Top of Page 47 *** territory's metes and bounds, must be considered by the trial judge as evidence of the boundaries of the bands' historically occupied lands.[54] In the United States, the Hawaii Supreme Court has recognized customary and traditional property rights of Hawaiian native peoples by reference to their oral testimony at trial.[55] And it is well established in the legal system of the United States that the testimony of qualified anthropologists, geographers, and other academic experts carries considerable weight in establishing indigenous peoples' property rights.[56] Australia's High Court, as reflected in the landmark case of Mabo v. Queensland,[57] has similarly recognized the relevance of indigenous peoples' oral testimony and expert academic opinions in establishing the existence, scope, and characteristics of indigenous peoples' traditional land tenure. Thus, evidence of indigenous peoples' traditional and customary land tenure can be established by qualified expert and academic opinion, as well as by objective facts that can be discerned from the oral accounts and documentation produced by the indigenous communities concerned. Indigenous peoples' own knowledge will, in most instances, provide the most reliable proof of the existence of property rights entitled to protection under a state's legal system. Neither the international system, nor individual states should deny an indigenous groups' claimed property rights in land by excluding or ignoring evidence derived from the culture and traditions of the indigenous group or community itself. To do so would be to perpetuate a long history of discrimination against indigenous peoples with regard to their own modalities of possession and use of lands and natural resources. In elaborating upon the requirements of the Convention on the Elimination of All Forms of Racial Discrimination, the UN Committee on the Elimination of Discrimination (CERD) has observed: In many regions of the world indigenous peoples have been, and are still being, discriminated against, deprived of their human rights and fundamental freedoms . . . and have lost their land and resources to colonists, commercial companies and State enterprises. Consequently the preservation of their culture and their historical identity has been and still is jeopardized.[58] *** Top of Page 48 *** Such patterns of discrimination against indigenous peoples cannot be allowed to persist in the modern world. Thus CERD has interpreted the convention against discrimination as requiring recognition and protection of indigenous peoples' own land and resource tenure systems,[59] consistent with the interpretation of the right to property under the American Convention and American Declaration advanced here. In Mabo v. Queensland [No.2] the Australian High Court exemplified the adherence to equality principles that are required to eradicate the legacies of historical discrimination affecting the enjoyment of property.[60] In that landmark case, the High Court, reversing more than a century of Australian jurisprudence and official policy, recognized "native title": that is, a right of property based on indigenous peoples' customary land tenure. In the case's leading opinion, Justice Brennan characterized as "unjust and discriminatory" the past failure of the Australian legal system to embrace and protect native title. Earlier, in Mabo v. Queensland [No.1],[61] Justices Brennan, Toohey, and Gaudron, in a joint judgement, expressed the Court's majority view that a legislative measure targeting native title for legal extinguishment was racially discriminatory and hence invalid. Regarding the indigenous Miriam people of the Murray Islands, the justices viewed the discriminatory treatment of their claim to native title as "impairing their human rights while leaving unimpaired the human rights of those whose rights in and over the Murray Islands did not take their origins in the laws and customs of the Miriam people."[62] As the Australia High Court in Mabo I declared, legislation providing that the state owned all land not under formal title and ignoring indigenous peoples' historic occupancy violated Australia's Racial Discrimination Act of 1975, which implemented the United Nations Convention on the Elimination of All Forms of Racial Discrimination. The 1988 Mabo I decision thus rejected Queensland's defense that state law resolved the aboriginal challenge, opening the way for the court's 1992 landmark decision recognizing native title under Australian law. Examined in light of the fundamental principle of non-discrimination enshrined in both the American Declaration and the American Convention, the right to property in these same instruments necessarily includes protection for those forms of property that are based on indigenous peoples' traditional patterns of land tenure. Failure to afford such protection to the property rights of indigenous peoples would accord illegitimate discriminatory treatment to their customary land tenure, in violation of the principle of equality under the law. *** Top of Page 49 *** B. Rights to Physical Well-Being and Cultural Integrity Typically for indigenous peoples, as for the indigenous communities in the cases now before the Inter-American system, land and natural resources are not mere economic commodities. The lands occupied and used by an indigenous community are crucial to its existence, continuity, and culture. The land and resource rights of indigenous peoples cannot be fully understood without an appreciation of the profound, sustaining linkages that exist between indigenous peoples and their lands. The U.N. Sub-Commission on the Promotion and Protection of Human Rights (formally the U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities) is now conducting a study on "indigenous people and their relationship to land."[63] An issue of the study observes that, through their involvement over the years at the U.N., indigenous peoples have emphasized the fundamental issue of their relationship to their homelands. They have done so in the context of the urgent need for understanding by non-indigenous societies of the spiritual, social, cultural, economic and political significance to indigenous societies of their lands, territories and resources for their continued survival and vitality. Indigenous peoples have explained that, because of the profound relationship that indigenous peoples have to their lands, territories and resources, there is a need for a different conceptual framework to understand this relationship and a need for recognition of the cultural differences that exist. Indigenous peoples have urged the world community to attach positive value to this distinct relationship. . . . [A] number of elements . . . are unique to  indigenous peoples: (i) a profound relationship exists between indigenous peoples and their lands, territories and resources; (ii) this relationship has various social, cultural, spiritual, economic and political dimensions and responsibilities; (iii) the collective dimension of this relationship is significant; and (iv) the inter-generational aspect of such a relationship is also crucial to indigenous peoples' identity, survival and cultural viability.[64] Indigenous peoples' agricultural and other land use patterns provide means of subsistence, and, further, are typically linked with familial and social relations, religious practices, and the very existence of indigenous communities as discrete social and cultural phenomena.[65] Several rights articulated in the American Convention and the American Declaration sup- *** Top of Page 50 *** port the enjoyment of such critical aspects of indigenous peoples' cultures, in addition to the right to property discussed above. These rights include the rights to life (American Declaration, article I, American Convention, article 4), the right to preservation of health and physical integrity (American Declaration, article XI, American Convention, article 5.1), the right to religious freedom (American Declaration, article III, American Convention, article 12), the right to family and protection thereof (American Declaration, articles V–VI, American Convention, article 17), and rights to freedom of movement and residence (American Declaration, article VIII; American Convention, article 22). The Inter-American Commission on Human Rights has observed that, "[f]or indigenous peoples, the free exercise of such rights is essential to the enjoyment and perpetuation of their culture."[66] The right to cultural integrity is made explicit by article 27 of the Covenant on Civil and Political Rights, which states: "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language."[67] Relying especially on article 27, the Inter-American Commission on Human Rights has affirmed that international law protects minority groups, including indigenous peoples, in the enjoyment of all aspects of their diverse cultures and group identities.[68] According to the Commission, the right to the integrity of, in particular, indigenous peoples' culture covers "the aspects linked to productive organization, which includes, among other things, the issue of ancestral and communal lands."[69] In its Proposed Declaration on the Rights of Indigenous Peoples, the Commission once again articulated the obligation of states to respect the cultural integrity of indigenous peoples, expressly linking property rights and customs to the survival of indigenous cultures. Article VII of the Proposed Declaration, entitled "Right to Cultural Integrity" states: 1. Indigenous peoples have the right to their cultural integrity, and their historical and archeological heritage, which are important both for their survival as well as for the identity of their members. *** Top of Page 51 *** 2. Indigenous peoples are entitled to restitution in respect of the property of which they have been dispossessed, and where that is not possible, compensation on a basis not less favorable than the standard of international law. 3. The states shall recognize and respect indigenous ways of life, customs, traditions, forms of social, economic and political organization, institutions, practices, beliefs and values, use of dress, and languages.[70] The United Nations Human Rights Committee has confirmed the Commission's interpretation of the reach of the cultural integrity norm, as displayed in its General Comment on article 27 of the Covenant of Civil and Political Rights: [C]ulture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of these rights may require positive measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.[71] Indigenous peoples' traditional land use patterns are included by the Committee as cultural elements that states must take affirmative measures to protect under article 27 regardless of whether states recognize indigenous peoples' ownership rights over lands and resources subject to traditional uses.[72] The Human Rights Committee found violations of article 27 in circumstances similar to those confronting the indigenous communities in the cases before the Inter-American system. In B. Ominayak, Chief of the Lubicon Lake Band of Cree v. Canada,[73] the Committee determined that Canada had violated article 27 by allowing the provincial government of Alberta to grant *** Top of Page 52 *** leases for oil and gas exploration and timber development within the ancestral territory of the Lubicon Lake Band. The Committee found that the natural resource development activity compounded historical inequities to "threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of article 27 so long as they continue."[74] Also significant are the Committee's pronouncements in the Länsmann cases. These two cases involved threats to reindeer herding by indigenous Sami people, through state-sanctioned rock quarrying and forestry in traditional Sami territory. In both cases, while not finding violations of the Covenant under the specific facts before it, the Committee concluded that article 27 protected Sami traditional means of livelihood in their traditional area, despite the fact that ownership to the area was in dispute.[75] Additionally, in both cases the Committee confirmed its position, articulated in an earlier case involving Sami reindeer herding, that article 27 protections extend to economic activity "where that activity is an essential element in the culture of an ethnic community."[76] Article 27 has also been the basis of decisions by the Inter-American Commission on Human Rights in cases involving particular indigenous groups. In these decisions, the Commission has confirmed the importance and international legal obligation of protecting indigenous peoples' cultural and related property rights. In its 1985 decision concerning the Yanomami Indians of Brazil, the Commission, citing article 27, asserted that contemporary international law recognizes "the right of ethnic groups to special protection in the use of their own language, of the practice of their own religion, and in general, for all those characteristics necessary for the preservation of their cultural identity."[77] The Commission noted that the OAS and its member states list "preservation and strengthening" of the indigenous groups' cultural heritage as a "priority," and declared that Brazil's failure to protect the Yanomami from incursions by miners and others into their ancestral lands threatened the Indians' physical well being, culture, and traditions. The Commission therefore recommended that the government secure the boundaries of a reserve for the Yanomami to protect their cultural heritage. Brazil responded by moving forward with the establishment of the Yanomami Reserve and by amending its constitution in 1988 to provide greater protections to Indians and their lands. The Inter-American Commission also invoked article 27 in its consideration of the 1983 complaint filed by the indigenous peoples of Nicaragua's Atlantic Coast against the government of Nicaragua for human rights abuses committed during the early years of Nicaragua's civil war.[78] Relying specifi- *** Top of Page 53 *** cally on the cultural rights guarantees of article                  27, the Commission recommended measures to secure the indigenous communities' land rights and to develop "an adequate institutional order" that would better accommodate the distinctive cultural attributes and traditional forms of organization of the indigenous groups.[79] The Commission's recommendations were instrumental in leading the government to the negotiating table with indigenous community leaders. This negotiation process culminated in the enactment of the constitutional provisions and law that affirm indigenous peoples' land rights and establish regional governments for the indigenous communities on Nicaragua's Atlantic Coast. However, Nicaragua has not fully implemented these enactments, as illustrated by the Awas Tingni Case. Critical to the viable continuation of indigenous peoples' cultures is the link the Human Rights Committee and Inter-American Commission have recognized between the economic and social activities of indigenous peoples and their traditional territories. Both the Human Rights Committee and the Inter-American Commission have concluded that, under international law, the states' obligation to protect indigenous peoples' right to cultural integrity necessarily includes the obligation to protect traditional lands because of the inextricable link between land and culture in tts. IV. International and Domestic Legal Practice: Emerging Customary International Law The foregoing interpretations of relevant provisions of the American instruments and applicable UN human rights treaties is reinforced by an increasingly well defined and consistent pattern of international and domestic legal practice that recognizes indigenous peoples' rights to lands and natural resources. Especially significant is the international practice associated with International Labour Organization Convention (No. 169) on Indigenous and Tribal Peoples, which has been ratified by several states in the Americas. A drafting committee that included thirty-nine states in addition to the worker and employee delegates that are part of the ILO developed the convention. It was adopted by the full conference of the ILO by an overwhelming majority of the voting delegates, including government deletates.[80] Although none of the states involved in the cases highlighted in this Article are parties to Convention No. 169, the convention nonetheless has relevance *** Top of Page 54 *** as part of a larger body of increasingly consistent practice at the international and domestic levels. Such other international practice includes resolutions and decisions by authoritative international bodies and developments toward new declarations by the UN and OAS on the rights of indigenous peoples. At the domestic level, relevant practices include legislation, judicial decisions, and constitutional reforms that pronounce protections for indigenous land and resource rights. Viewed comprehensively, applicable international practice incorporates and goes beyond the domain of existing treaty obligations for states within the Inter-American system. Taken together with relevant domestic legal practice, international practice gives rise to obligations of customary international law that apply more generally throughout the Inter-American system. As demonstrated by an expanding body of literature, it is evident that indigenous peoples have achieved a substantial level of international concern for their interests, and there is substantial movement toward a convergence of international opinion on the content of indigenous peoples' rights, including rights over lands and natural resources.[81] Developments toward consensus about the content of indigenous rights simultaneously give rise to expectations that the rights will be upheld, regardless of any formal act of assent to the articulated norms. The discourse of indigenous peoples and their rights has been part of multiple international institutions and conferences in response to demands made by indigenous groups over several years backed by an extensive record of justification. The pervasive assumption has been that the articulation of norms concerning indigenous peoples is an exercise in identifying standards of conduct that are required to uphold widely shared values of human dignity. The multilateral processes that build a common understanding of the content of indigenous peoples' rights, therefore, also build expectations of behavior in conformity with those rights. Under modern legal theory, processes that generate consensus about indigenous peoples' rights build customary international law. As a general matter, norms of customary law arise when a preponderance of states and other authoritative actors converge upon a common understanding of the norms' content and generally expect future behavior in conformity with the norms. The traditional points of reference for determining the existence and contours of customary norms include the relevant patterns of actual conduct of state actors. Today, however, actual state conduct is not the only or necessarily determinative indicia of customary norms. With the advent of modern inter-governmental institutions and enhanced communications media, states and other relevant actors increasingly engage in prescriptive dialogue. Especially in multilateral settings, explicit communication may itself bring about a convergence of understanding and expectation about rules, establishing in those rules a pull toward compliance, even in advance of a widespread *** Top of Page 55 *** corresponding pattern of physical conduct. It is thus increasingly understood that explicit communication, of the sort that is reflected in the numerous international documents and decisions cited below, builds customary rules of international law. Conforming domestic laws and related practice reinforces such customary rules of international law. Non-conforming domestic practice undermines the apparent direction of the international norm-building only to the extent the international regime holds out and eventually accepts as legitimate the non-conformity. Although international and domestic practice varies somewhat in its recognition and protection of indigenous peoples' land and resource rights, just as state practice varies in its treatment of property rights in general, it nonetheless entails a sufficiently uniform and widespread acceptance of core principles to constitute a norm of customary international law. The relevant practice of states and international institutions establishes that, as a matter of customary international law, states must recognize and protect indigenous peoples' rights to land and natural resources in connection with traditional or ancestral use and occupancy patterns. This new and emerging customary international law, along with treaty obligations arising from outside the Inter-American system, inform an understanding of the rights that are protected by the American Convention and American Declaration. A. International Practice One of the most impressive achievements of the post World War II international system in protecting human rights has been the recognition of indigenous peoples as special subjects of concern.[82] As part of this development, states and others acting through international institutions increasingly have affirmed the central importance of traditional lands and resources to the cultural survival of indigenous peoples. The requirement that states recognize and protect indigenous peoples' rights in their traditional lands is included in the Inter-American Charter of Social Guaranties, which was adopted by the General Assembly of the Organization of American States in 1948. Article 39 of the Charter requires that states take "necessary measures . . . to give protection and assistance to the Indians, safeguarding their life, liberty, and property, preventing their extermination, shielding them from oppression and exploitation, protecting them from want and furnishing them with an adequate education."[83] Further, the article recommends establishing "[i]nstitutions or services" created specifically "to safeguard [Indian] lands, legalize their ownership thereof, and prevent the invasion of such lands by outsiders."[84] *** Top of Page 56 *** ILO Convention No. 107 of 1957 similarly recognized indigenous peoples' rights of ownership to the lands they traditionally occupied.[85] Despite Convention No. 107's widely criticized—and now rejected – assimilationist bias in other respects, its recognition in 1957 of the right to collective land ownership by indigenous groups demonstrates the long-standing concern in international practice for protecting indigenous peoples' rights to their traditional lands.[86] ILO Convention No. 169 of 1989, a revision of Convention No. 107, is international law's most concrete manifestation of the growing recognition of indigenous peoples' rights to property in lands. Convention No. 169's land rights provisions are framed by article 13(1), which states: In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.[87] The Convention, which has been ratified by a significant number of American states,[88] speaks specifically to the property rights of indigenous peoples: "The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized."[89] The growing acceptance in international practice of indigenous peoples' rights in land and natural resources is further evidenced by relevant provisions of the Proposed American Declaration on the Rights of Indigenous Peoples,[90] prepared by the Inter-American Commission on Human Rights in consultation with OAS member states and representatives of indigenous peoples.[91] Emphasizing that such property rights originate from traditional patterns of land tenure, the Proposed Declaration also stipulates: "Nothing *** Top of Page 57 *** . . . shall be construed as limiting the right of indigenous peoples to attribute ownership within the community in accordance with their customs, traditions, uses and traditional practices, nor shall it affect any collective community rights over them."[92] The Draft United Nations Declaration on the Rights of Indigenous Peoples, developed by the United Nations Working Group on Indigenous Populations and approved by U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, provides further evidence of the increasingly widespread international recognition of and respect for indigenous peoples' rights in lands and resources. The Draft U.N. Declaration was approved by the Sub-Commission after several years of discussions in which both states and indigenous peoples from throughout the world took part.[93] The Draft U.N. Declaration affirms: Indigenous peoples have the right to own, develop, control and use the lands and territories, including the total environment of the lands, air, waters, coastal seas, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used. This includes the right to the full recognition of their laws, traditions and customs, land-tenure systems and institutions for the development and management of resources, and the right to effective measures by States to prevent any interference with, alienation of or encroachment upon these rights.[94] In addition to the many documents that articulate the above principles, examination of the active engagement of international human rights bodies demonstrates the broad acceptance of these principles in the realm of practice as well. The U.N. Human Rights Committee, the U.N. Committee on the Elimination of Racial Discrimination, the relevant organs of the International Labour Organization, and the Inter-American Commission on Human Rights apply the prevailing understandings of indigenous peoples' land and resource rights when they monitor human rights situations where indigenous peoples are located and when they consider complaints brought by specific indigenous groups.[95] Every major international body that has considered indigenous peoples' rights during the past decade has acknowledged the crucial importance of *** Top of Page 58 *** lands and resources to the cultural survival of indigenous peoples and communities. They also have recognized the critical need for governments to respect and protect the varied and particular forms of land tenure defined and regarded as property by indigenous peoples themselves. In addition to the international human rights institutions mentioned above, the World Bank and the European Union have pronounced and acted in favor of these rights.[96] Indigenous peoples and their rights over land and natural resources have been discussed at a multitude of international meetings and conferences sponsored by the U.N., the OAS, and other inter-governmental organizations during the last several years. In their numerous oral and written public statements at these meetings, states have concurred or acquiesced in the essential elements of the principles of indigenous peoples' land and resource rights that now find expression in several international documents.[97] B. Domestic Practice The international norms that recognize rights based on indigenous peoples' traditional landholdings and resource use are increasingly incorporated and reflected in the domestic legal practice of states throughout the American region and the world. A large number of states give formal legal recognition to indigenous peoples' communal rights in lands and natural resources based on traditional patterns of use and occupation.[98] Throughout the Americas in particular, OAS state members have amended their constitutions or have adopted new laws to recognize and protect land and natural resource rights for indigenous peoples. In several states, judicial organs have been the architects of domestic legal doctrine recognizing such rights. Similarly, state legal systems in other parts of the world have adopted legal protections for indigenous peoples' traditional land tenure or otherwise provided them rights to land in recognition of historical tenure. Much of this global and regional practice is analyzed and described below. Domestic legal developments are not necessarily sufficient to protect indigenous peoples in the enjoyment of their land and resource tenure. And, of course, those domestic legal advances already achieved remain far from fully implemented and translated into reality for indigenous peoples. Nonetheless, these developments signify a clear trend in the direction of the relevant international practice, and they constitute legal obligations for state officials under domestic law and give rise to expectations of conforming behavior on *** Top of Page 59 *** the part of the international community. As a result, this domestic state practice, together with relevant practice at the international level, builds customary international law. At the very least, a sufficient pattern of common practice regarding indigenous peoples' land and resource rights exists among OAS member states to constitute customary international law at the regional level.[99] 1. State Parties to the American Convention a. Bolivia The Bolivian Constitution of 1967, as amended in 1994, in article 171 guarantees and protects the social, economic and cultural rights of indigenous peoples including rights related to their identity, values, languages, customs, institutions, and customary land and resource use. In addition to this constitutional provision, there are several other laws specifically protecting indigenous peoples' land rights. Supreme Resolution 205862 of February 17, 1989 declares the national and social necessity of recognition, assignment, and tenure of indigenous territorial areas in order to guarantee their full economic and cultural development. Various executive decrees have recognized and demarcated indigenous peoples' lands.[100] Bolivian Law 1257 ratifies ILO Convention No. 169, which in article 14 recognizes the right of indigenous peoples' ownership and possession of lands. Law 1715 of the National Service of Agrarian Reform reaffirms the constitutional provisions of article 171 and guarantees the rights of indigenous peoples to their "Tierras Comunitarias de Origen" (Original Communal Lands) and to the sustainable use of renewable natural resources. Similarly, Law 1715 aims to protect the integrity of indigenous peoples' areas, giving preference to indigenous peoples' rights on their lands over those of others in cases of overlapping or conflicting rights.[101] In addition, the Bolivian Forestry Law recognizes the rights of indigenous peoples to the forests on their lands and prohibits the State from granting forestry concessions in areas where indigenous peoples are living. This law also gives priority to indigenous communities for grants of forestry concessions in their areas and regards the communities as the resource managers in development of management plans for forestry operations.[102] *** Top of Page 60 *** b. Brazil Brazil amended its constitution in 1988 to accord greater protections to Indians and their lands.[103] Article 231 of the amended constitution recognizes the social organization, customs, languages, beliefs, and traditions of the indigenous peoples and their ancestral rights to lands they have traditionally occupied. This article provides that the state must demarcate indigenous lands, protect them, and assure that indigenous peoples are able to benefit from those lands. The Brazilian constitution guarantees to indigenous peoples permanent possession and exclusive use of their traditional lands including soils and waters.[104] It also provides a broad array of protections including the prohibition of removal of indigenous peoples from their lands, freedom from outside exploitation of their lands, and preservation of the environmental resources necessary for their well-being and cultural survival.[105] The constitution recognizes the right of indigenous peoples to benefit from natural resource activities on their lands while also protecting those lands from alienation. It further provides that indigenous peoples be allowed to develop according to their own usages, customs, and beliefs.[106] Federal mandates implementing the constitutional provisions seek to provide additional protections for indigenous land rights.[107] In addition, Brazilian courts have held as unconstitutional any state action, by statute or contract, that implies a reduction or alienation of indigenous lands.[108] c. Chile In 1993, Chile's legislative authority established a law protecting indigenous peoples' land rights.[109] This law includes provisions recognizing indigenous communities' rights in lands that they actually occupy or possess. In article 13 the law provides that the indigenous peoples' lands, as required by national interest, will enjoy the protection of this law and will not be transferred, obstructed, taxed, nor acquired by prescription, except between communities or indigenous members of the same ethnic group. Articles 18 and 19 of this law recognize the norms of collective rights to lands as established by the customs of each ethnic group and the right of indigenous peoples to engage in collective activities on lands of cultural significance. The affected indigenous communities may request a voluntary transfer of real estate title to these culturally significant areas. *** Top of Page 61 *** Articles 20 through 22 create a Fund for Indigenous Lands and Waters administered by a corporation established under this law. The corporation may grant subsidies for the acquisition of lands. Articles 26 and 27 discuss the establishment of Indigenous Development Areas in which the Ministry of Planning and Cooperation, at the proposal of the corporation, may establish territorial spaces within the administrative structure of the state focused on benefiting the harmonious development of the indigenous peoples and their communities. Further articles of the law provide for indigenous peoples' participation in establishment and planning regarding protected wilderness areas, as well as in the decision-making processes that affect their rights.[110] d. Colombia The 1991 Constitution of Colombia provides indigenous peoples with distinct constitutional status. Indigenous peoples form a special constituency for the election of central government representatives.[111] They have the right to self-government according to their customs and traditions within their lands, including the administration of justice.[112] Cultural, social, and economic integrity is protected generally by article 330 of the Constitution. The Constitutional Court has recognized territory as a necessary condition for cultural integrity, and indigenous peoples' land rights are determined in light of ensuring that integrity.[113] The constitution provides for recognition of indigenous peoples' lands and guarantees their inalienable and imprescriptible nature.[114] The Constitutional Court has held that the constitutional recognition of indigenous land imposes a legal obligation on the State to demarcate and protect the lands of particular indigenous communities. "The fundamental right of ethnic groups to collective property implicitly contains, given the constitutional protection of the principle of ethnic and cultural diversity, a right to the creation of reserves under the control of the indigenous communities."[115] Article 330 guarantees indigenous peoples the right to be consulted regarding natural resource development or exploitation in their territories. For this right to be honored, the Constitutional Court has determined that the *** Top of Page 62 *** consultation must be broad and meaningful. It must include full disclosure of the proposed activities on the land and of the possible consequences of that activity. The communities must also have ample opportunity to discuss the plans among their members and to provide a meaningful response.[116] Under article 33, the state is bound to take measures to protect against detrimental effects brought to their attention by the community during the consultation period. This article provides that the exploitation of natural resources in indigenous peoples' territories will not be carried out so as to derogate from the cultural, social, and economic integrity of the indigenous communities.[117] Columbia has also recognized the need for effective judicial proceedings to protect indigenous peoples' rights to culture and land. Different legal procedures and remedies exist for the vindication of fundamental rights (tutela) and collectively shared interests (acción popular). Although a tutela action is generally only available for individual rights, indigenous communities have been permitted to bring tutela actions to protect their land and cultural rights as fundamental rights despite the collective nature of those rights. e. Ecuador The new Ecuadorian Constitution of June, 1998 contains several comprehensive provisions regarding indigenous peoples' rights. In Title III, article 84, of the constitution, Ecuador recognizes and guarantees to indigenous peoples collective rights to maintain and develop their cultural and economic traditions, conserve community lands as imprescriptible property (protected from seizure and exempt from taxation), and maintain possession of ancestral community lands. Under this article, indigenous peoples are guaranteed the right to participate in the use, administration, and conservation of renewable natural resources found on their lands, be consulted in programs of non-renewable resource exploration and exploitation, and be ensured of their participation in the benefits of these activities. Indigenous peoples may also receive indemnification for the socio-environmental damage caused by resource extraction activities. Article 84 of the Constitution further commits the State to conserve and promote indigenous peoples' practices of bio-diversity management, traditional forms of social organization, and collective intellectual property. Indigenous peoples are protected from displacement from their lands and are guaranteed the right to participate, with adequate financing from the state, in the formulation of priorities in plans and projects for the development and improvement of their economic and social conditions. The law also guarantees their right to participate in official legislative bodies.</di

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