(Photo: Darryl Dyck, The Canadian Press)
Grand Chief Stewart Phillip, Okanagan Aboriginal Leader and President of the Union of British Columbia Indian Chiefs, was photographed with a broad smile on his face the day of the unanimous Canadian Supreme Court ruling granting the Tsilhqot’in First Nation in Canada title to 1,700-square-kilometer area of their traditional land. To the Grand Chief, the decision enables his community to “participate in the economic future of this province as equal partners.” Chief Roger William of the Xeni Gwet’in, one of the six groups of the Tsilhqot’in, echoed Steward’s enthusiasm, saying “This case is about us regaining our independence to be able to govern our own nation and rely on the natural resources of our land.”
The Canadian Supreme Court gives the Tsilhqot’in full rights to negotiate land use with corporations interested in mining, logging or developing their traditional territory. Although the impetus for the Tsilhqot’in bringing the court case was a logging license issued by the government, the community is amenable to negotiating with business and developing portions of the Tsilhqot’in land. “The goal is to have proponents actually come through the door of the Tsilhqot’in Nation,” Chief Russell Myers-Ross of Yunesit’in said.
The Tsilihgot’in are among the few indigenous peoples that have full control over the use and development of their traditional land. Partially because of the Tsilihgot’in Nation’s unique history of never having signed land treaties with European settlers, two decades of court cases have paved the way for this land entitlement victory.
Although indigenous people around the world are granted rights to occupy land, these rights rarely extend to ability to manage the economic development of their land, which is generally managed by the government. This means that when businesses are interested in developing these territories they are legally obligated to negotiate use of the land with the government and not the local population.
When indigenous people attempt to negotiate directly with companies they are often met with regulations and bureaucracy that impede or restrict land development. Many companies, particularly those in the extractive industries, have realized that in order to operate without interruption, it is also necessary to obtain a social contract through informal negotiations with communities. In the case of the Tsilhqot’in, Pamela Palmater of the Centre for Indigenous Governance at Ryerson University explains, “It’s not just about the duty to consult anymore, this really changes it to a requirement to get consent over all unceded territory in this country.”
In a recent panel organized by the Cato Institute, Tim Wilson, Human Rights Commissioner for Australia, likened the predicament of indigenous peoples’ land use to being “held against their will in a time warp.” Commonly referred to as the “Freedom Commissioner,” Wilson has been a champion for Aboriginal Australians’ property rights.
“In the end Aboriginal Australians should have the same choices and opportunities as every other Australian, we just need to figure out how to get there rather than what we have at the moment,” said Wilson. “It’s not enough for Aboriginal Australians to simply have property rights; they must also have the freedom to exercise them.”
Wilson argues that property rights are recognized in Article 17 of the Universal Declaration of Human Rights and connects lack of land ownership to preventing access to capital and wealth creation opportunities for Aboriginal communities. Many others point to the importance of property rights for self-determination and development. The importance of property rights goes back to the historical origins of modern-day thinking about human rights. John Locke, in the Second Treatise Concerning Civil Government, identifies life, liberty, and property as the rights that the government is morally obligated to protect.
The Commission on Legal Empowerment of the Poor co-chaired by Hernando de Soto and Madeleine Albright – the first global initiative to focus on the link between exclusion, poverty, and the law – has found that, “In too many countries, the laws, institutions, and policies governing economic, social, and political affairs deny a large part of society the chance to participate on equal terms.” CIPE recognizes property rights as a fundamental building block of modern economy and created the International Property Markets Scorecard to map out the ecosystem of property markets in different countries to highlight the areas of strength and weakness as well as opportunities for reform.
As de Soto describes in his work The Peruvian Amazon is not Avatar chronicling the struggle of indigenous communities in Peru, “[Indigenous people] refuse to continue being marginalized and having no role in the production model that is being proposed by globalization; they reject feeling inadequate in their own neighborhood.” He reports that, of the 5,000 communities in the Peruvian Amazon, just 5 percent have a property title allowing them to manage their resources efficiently and productively.
Obstacles preventing full land ownership include missing or unclear geographical boundaries, errors in land owner names on official records, overlapping ownership claims, difficulty accessing property titles, lack of backing from local authorities, and differing systems of local governance. “But,” de Soto argues, “there is no reason to treat [indigenous people] as if they were pre-Columbian antiques residing in glass cases in the Museum of Natural History, or invalids incapable of dealing with the rest of the world and modernity.” In fact, through de Soto’s work in the Peruvian Amazon, he explains that communities want to engage in the global market but they do not have enough control over their land to do so.
Karol Boudreaux, Land Tenure and Resource Rights Practice Lead at the Cloudburst Group, also speaking at the Cato event, explains that 65 percent of the world’s land is owned through customary systems under which no individual or legal entity can claim sole ownership over a particular plot of land. She argues that decentralizing control of indigenous land may have benefits by breaking monopolies on political power, enabling entrepreneurship, and facilitating improved environmental outcomes.
Both Wilson and Boudreaux agree that there should be a process to enable communal land to be decentralized if that is what communities choose to do. Boudreaux explains that spatial mapping technology is being used to settle property claims locally through crowd sourcing property claims. This technology is most effective when in countries like Tanzania governments work with local communities to verify and support land ownership claims collaboratively.
Grand Chief Stewart Philip is optimistic that the Tsilhqot’in victory will set a precedent for future land cases. “I truly believe a rising tide carries all boats,” he said. It has certainly helped to spark new discussions about a universally recognized right that has yet to be officially implemented in many parts of the world.
Laura Van Voorhees is Program Officer for Global Programs at CIPE.