3.4 Land claims and legal battles

Land claims are a crucial issue for Indigenous peoples across the Americas. These claims stem from historical dispossession and ongoing struggles for recognition of traditional territories. Understanding the legal and moral basis for these claims is essential for addressing Indigenous rights and self-determination.

Land claim processes involve complex legal frameworks, including international law, domestic systems, and treaties. Major court cases have set important precedents, but Indigenous peoples still face significant challenges. These include the burden of proof, government resistance, and lengthy procedures that can span decades.

Historical context of land claims

• Land claims are rooted in the historical dispossession of Indigenous peoples from their traditional territories through colonization, treaty-making, and government policies
• Understanding the historical context is crucial for recognizing the legal and moral basis for contemporary land claims and the ongoing struggle for Indigenous rights and self-determination

Pre-colonial land ownership

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• Prior to European colonization, Indigenous peoples had their own systems of land ownership, governance, and resource management based on their unique cultures, traditions, and relationships with the land
• Indigenous land tenure systems often emphasized communal ownership, stewardship, and sustainable use of resources rather than individual property rights
• Examples of pre-colonial land use include:
  • Seasonal migration patterns for hunting, fishing, and gathering
  • Cultivation of crops like corn, beans, and squash in some regions
  • Establishment of permanent settlements and trade networks

Impact of European colonization

• European colonization of the Americas had devastating impacts on Indigenous peoples, including the loss of land, resources, and sovereignty
• Colonial powers often justified the dispossession of Indigenous lands through the Doctrine of Discovery, which asserted European superiority and the right to claim "discovered" lands
• Colonization introduced foreign diseases, resulting in massive population declines and weakening Indigenous peoples' ability to defend their territories
• Examples of colonial land acquisition include:
  • The Spanish encomienda system, which granted colonists control over Indigenous labor and land
  • The British Crown's assertion of sovereignty over Indigenous territories in North America
  • The American Manifest Destiny ideology, which fueled westward expansion and the displacement of Indigenous peoples

Treaties and agreements

• Treaties and agreements between Indigenous nations and colonial or state governments played a significant role in the dispossession of Indigenous lands and the establishment of colonial control
• Many treaties were signed under duress, with Indigenous peoples facing military pressure, economic hardship, or the threat of further land loss
• Treaties often contained provisions for the cession of Indigenous lands in exchange for reserves, annuities, or promises of protection and services
• Examples of historic treaties include:
  • The Royal Proclamation of 1763, which recognized Indigenous land rights in British North America
  • The Treaty of Waitangi (1840) between the British Crown and Māori chiefs in New Zealand
  • The Numbered Treaties (1871-1921) in Canada, which cover much of western and northern Canada

Legal frameworks for land claims

• Land claims are pursued through various legal frameworks, including international law, domestic legal systems, and treaties, each with its own set of principles, precedents, and challenges
• Understanding these legal frameworks is essential for navigating the complex process of asserting and negotiating land claims and seeking recognition of Indigenous rights

Indigenous rights in international law

• International law has increasingly recognized the rights of Indigenous peoples, including their rights to land, resources, and self-determination
• Key international instruments include:
  • The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (2007), which affirms Indigenous peoples' rights to their lands, territories, and resources
  • The International Labour Organization (ILO) Convention No. 169 (1989), which requires states to respect Indigenous peoples' land rights and consult with them on matters affecting their territories
• International human rights bodies, such as the Inter-American Commission on Human Rights and the African Commission on Human and Peoples' Rights, have issued decisions and recommendations supporting Indigenous land rights

Domestic legal systems

• Domestic legal systems play a crucial role in the recognition and protection of Indigenous land rights, with courts interpreting constitutional provisions, legislation, and common law principles
• In many countries, Indigenous land rights are recognized through specific laws or constitutional provisions, such as:
  • The Indian Act (1876) in Canada, which governs First Nations reserves and land management
  • The Native Title Act (1993) in Australia, which provides for the recognition and protection of Aboriginal and Torres Strait Islander land rights
• Domestic courts have issued landmark decisions affirming Indigenous land rights, such as the Mabo v Queensland (No 2) (1992) decision in Australia, which recognized native title

Aboriginal title vs treaty rights

• Aboriginal title and treaty rights are two distinct but related concepts in the context of Indigenous land claims
• Aboriginal title refers to the inherent rights of Indigenous peoples to their traditional lands based on their long-standing occupation, use, and stewardship of those lands
  • Aboriginal title is recognized in common law and can exist independently of colonial or state recognition
  • The Delgamuukw v British Columbia (1997) decision in Canada affirmed the existence of Aboriginal title and set out criteria for its proof
• Treaty rights are rights that are specifically recognized and protected through treaties between Indigenous nations and colonial or state governments
  • Treaty rights can include rights to land, hunting, fishing, and other resources, as well as self-government and cultural rights
  • The Ngāti Whātua Ōrākei Claims Settlement Act (2012) in New Zealand is an example of a modern treaty that recognizes Māori land rights and provides for the return of significant sites

Major land claim cases

• Landmark court decisions and precedent-setting rulings have shaped the legal landscape of Indigenous land claims, establishing important principles and paving the way for future cases
• These cases demonstrate the complex and often lengthy process of asserting and proving land claims, as well as the ongoing challenges and resistance faced by Indigenous peoples

Landmark court decisions

• Calder v Attorney-General of British Columbia (1973) in Canada: The Supreme Court of Canada recognized the existence of Aboriginal title, although the case was ultimately dismissed on a technicality
• Mabo v Queensland (No 2) (1992) in Australia: The High Court of Australia overturned the doctrine of terra nullius and recognized native title, leading to the Native Title Act (1993)
• Delgamuukw v British Columbia (1997) in Canada: The Supreme Court of Canada affirmed the existence of Aboriginal title and set out criteria for its proof, including exclusive occupation, continuity, and Indigenous perspectives

Precedent-setting rulings

• Tsilhqot'in Nation v British Columbia (2014) in Canada: The Supreme Court of Canada issued the first declaration of Aboriginal title, recognizing the Tsilhqot'in Nation's title to a portion of their traditional territory
• Ngāti Apa v Attorney-General (2003) in New Zealand: The Court of Appeal ruled that Māori customary rights in the foreshore and seabed had not been extinguished, leading to the controversial Foreshore and Seabed Act (2004)
• Timber Creek Compensation Claim (2019) in Australia: The High Court of Australia awarded compensation to the Ngaliwurru and Nungali peoples for the loss of native title, setting a precedent for future compensation claims

Ongoing legal battles

• Wet'suwet'en land dispute in Canada: The Wet'suwet'en hereditary chiefs oppose the construction of a natural gas pipeline through their traditional territory, leading to protests and legal challenges
• Keystone XL Pipeline in the United States: Indigenous groups, including the Rosebud Sioux Tribe and Fort Belknap Indian Community, have challenged the construction of the pipeline, citing threats to their land, water, and cultural resources
• Adani Carmichael coal mine in Australia: The Wangan and Jagalingou people have opposed the development of the mine on their traditional lands, leading to legal challenges and protests

Challenges in land claim processes

• Indigenous peoples face numerous challenges in pursuing land claims, including the burden of proof, government resistance, and lengthy and costly procedures
• These challenges highlight the ongoing power imbalances and systemic barriers that Indigenous peoples must navigate in their struggle for land rights and self-determination

Burden of proof

• In many legal systems, Indigenous peoples bear the burden of proving their land rights, which can be a daunting task given the historical dispossession and erosion of traditional knowledge and practices
• Proving Aboriginal title or native title often requires extensive historical, anthropological, and archaeological evidence, as well as oral histories and traditional knowledge
• The standards of proof can be high, as seen in the Delgamuukw case, which required evidence of exclusive occupation at the time of British assertion of sovereignty

Government resistance

• Governments often resist Indigenous land claims, fearing the loss of control over resources, the disruption of existing land uses, or the setting of precedents for other claims
• Resistance can take the form of legal challenges, political opposition, or the creation of barriers to the recognition and implementation of land rights
• Examples of government resistance include:
  • The Canadian government's initial opposition to the Calder case and its reluctance to negotiate modern treaties
  • The Australian government's amendment of the Native Title Act in 1998 to limit the scope of native title rights
  • The New Zealand government's Foreshore and Seabed Act (2004), which vested ownership of the foreshore and seabed in the Crown, effectively extinguishing Māori customary rights

Lengthy and costly procedures

• Land claim processes can be extremely lengthy and costly, often spanning decades and requiring significant financial and human resources
• Indigenous communities must navigate complex legal and bureaucratic systems, often with limited capacity and funding
• The Noongar native title settlement in Western Australia, which took over a decade to negotiate and involved six Indigenous groups, is an example of the scale and complexity of land claim processes
• The Algonquin land claim in Ontario, Canada, has been ongoing since 1983 and has yet to be resolved, demonstrating the long-term commitment required for land claims

Socio-economic impact of land claims

• Land claims have far-reaching socio-economic impacts on Indigenous communities, as well as on the broader society and economy
• The resolution of land claims can provide a foundation for Indigenous self-determination, economic development, and reconciliation, while also raising challenges and tensions with existing land uses and interests

Resource development on claimed lands

• Claimed lands often overlap with areas of significant resource development, such as mining, forestry, or oil and gas extraction
• The resolution of land claims can provide Indigenous communities with greater control over and benefits from resource development on their traditional territories
• Examples of resource development on claimed lands include:
  • The Voisey's Bay nickel mine in Labrador, Canada, which was developed following the settlement of the Inuit and Innu land claims
  • The Ngāti Porou Foreshore and Seabed Deed of Agreement in New Zealand, which provides for Māori participation in the management and development of marine resources
• However, resource development on claimed lands can also lead to conflicts and environmental concerns, as seen in the opposition to the Adani Carmichael coal mine in Australia or the Coastal GasLink pipeline in Canada

Indigenous self-determination

• Land claims are often driven by Indigenous peoples' desire for self-determination and control over their lands, resources, and futures
• The recognition of land rights can provide a foundation for Indigenous self-government, cultural revitalization, and economic development
• Examples of Indigenous self-determination arising from land claims include:
  • The Nunavut Land Claims Agreement (1993) in Canada, which led to the creation of the Nunavut territory and government, providing Inuit with significant control over their lands and resources
  • The Waikato-Tainui Raupatu Claims Settlement Act (1995) in New Zealand, which provided for the return of land and resources to the Waikato-Tainui people and established a framework for their economic and cultural development
• However, the realization of self-determination often requires ongoing negotiation and collaboration with governments and other stakeholders

Reconciliation and healing

• Land claims can play a crucial role in the process of reconciliation between Indigenous peoples and settler societies, addressing historical injustices and building new relationships based on respect and partnership
• The resolution of land claims can provide a sense of closure and healing for Indigenous communities, as well as an opportunity for broader society to learn about and acknowledge the impacts of colonization
• Examples of reconciliation and healing through land claims include:
  • The Nisga'a Final Agreement (2000) in Canada, which provided for Nisga'a self-government and the return of lands, as well as establishing a new relationship between the Nisga'a Nation and the federal and provincial governments
  • The Uluru Statement from the Heart (2017) in Australia, which called for the establishment of a First Nations Voice in the Constitution and a Makarrata Commission to oversee agreement-making and truth-telling, including in relation to land rights
• However, reconciliation and healing are ongoing processes that require sustained commitment and action from all parties

Contemporary land claim settlements

• In recent years, there have been significant advances in the negotiation and implementation of land claim settlements, providing models for future agreements and demonstrating the benefits of collaborative approaches
• Contemporary settlements often involve a combination of land transfers, financial compensation, self-government provisions, and co-management arrangements, reflecting the diverse interests and aspirations of Indigenous peoples

Successful negotiated agreements

• The Tla'amin Final Agreement (2016) in British Columbia, Canada, which provided for Tla'amin self-government, the transfer of lands, and financial compensation, as well as establishing a framework for the co-management of resources and the protection of Tla'amin culture and language
• The Noongar Native Title Settlement (2021) in Western Australia, the largest native title settlement in Australian history, which includes land transfers, financial compensation, and the establishment of a Noongar Land Estate and Noongar Boodja Trust to support economic and cultural development
• The Pare Hauraki Collective Redress Deed (2018) in New Zealand, which settled the historical claims of 12 Hauraki iwi and provided for cultural and commercial redress, including the transfer of lands and financial compensation

Land claim implementation

• The implementation of land claim settlements is a complex and ongoing process, requiring collaboration between Indigenous communities, governments, and other stakeholders
• Challenges in implementation can include:
  • Capacity constraints within Indigenous communities and governments
  • Disputes over the interpretation and application of settlement provisions
  • Resistance from third parties with interests in the lands or resources involved
• Examples of land claim implementation include:
  • The establishment of the Nunavut Planning Commission and the Nunavut Impact Review Board to oversee land use planning and environmental assessment in the Nunavut territory
  • The creation of the Waikato River Authority to co-manage the Waikato River in accordance with the Waikato-Tainui Raupatu Claims Settlement Act
  • The development of the Noongar Land Estate and Noongar Boodja Trust to support Noongar economic and cultural development in southwest Western Australia

Co-management of resources

• Co-management arrangements, in which Indigenous peoples and governments share responsibility for the management of lands and resources, are increasingly common in land claim settlements
• Co-management can provide for Indigenous participation in decision-making, the incorporation of traditional knowledge, and the sustainable use of resources
• Examples of co-management arising from land claims include:
  • The Gwaii Haanas National Park Reserve, National Marine Conservation Area Reserve, and Haida Heritage Site in British Columbia, Canada, which is co-managed by the Haida Nation and Parks Canada
  • The Kungun Ngarrindjeri Yunnan Agreement (2009) in South Australia, which provides for Ngarrindjeri participation in the management of the Coorong, Lower Lakes, and Murray Mouth region
  • The Te Urewera Act (2014) in New Zealand, which established Te Urewera as a legal entity with its own rights and granted joint management to the Tūhoe people and the New Zealand government

Future of land claims

• As the legal and political landscape continues to evolve, the future of land claims will be shaped by ongoing negotiations, emerging legal principles, and the aspirations of Indigenous peoples
• The resolution of outstanding claims, the implementation of existing settlements, and the recognition of the enduring importance of land for Indigenous peoples will be critical challenges and opportunities in the years ahead

Unresolved claims and disputes

• Despite significant progress in recent years, many land claims remain unresolved, and new disputes continue to arise
• Examples of unresolved claims and disputes include:
  • The ongoing treaty negotiations in British Columbia, Canada, where the majority of First Nations have not yet reached comprehensive settlements
  • The Wet'suwet'en land dispute in British Columbia, which has highlighted the tensions between Indigenous land rights, resource development, and conflicting systems of governance
  • The long-running dispute over the Adani Carmichael coal mine in Queensland, Australia, which has pitted the interests of the Wangan and Jagalingou people against those of the mining company and the government
• The resolution of these and other outstanding claims will require political will, legal innovation, and a commitment to respectful dialogue and negotiation

Evolving legal landscape

• The legal landscape of land claims continues to evolve, with new court decisions, legislation, and international standards shaping the recognition and protection of Indigenous land rights
• Recent developments include:
  • The Canadian government's proposed Recognition and Reconciliation of Rights Framework, which seeks to reform the comprehensive claims process and establish a new relationship with Indigenous peoples based on the recognition of rights
  • The Australian High Court's decision in Love v Commonwealth (2020), which held that Aboriginal Australians cannot be considered "aliens" under the Constitution, potentially strengthening their claims to land and sovereignty
  • The ongoing negotiations on the United Nations Declaration on the Rights of Indigenous Peoples, which could provide a stronger international framework for the recognition and protection of Indigenous land rights
• As the legal landscape evolves, Indigenous peoples, governments, and courts will need to navigate new opportunities and challenges in the pursuit of just and sustainable settlements

Importance of land for Indigenous peoples

• Ultimately, the future of land claims will be shaped by the enduring importance of land for Indigenous peoples, not only as a source of economic and political power but also as a foundation for cultural identity, spiritual connection, and self-determination
• As stated in the Uluru Statement from the Heart, "This sovereignty is a spiritual notion: the ancestral tie between the land, or 'mother nature,' and the Aboriginal an