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e 2005 SeA

Managing EditorPrafessor Thomas Walde, Centre for

Energy, Petroleum & Minerallaw & Policy,University of Dundee, Scatland

Editorial AssistantMahmoud Reza Firoozmand, Centre for

Energy, Petraleum & Minerallaw & Policy,University of Dundee, Scotland

Anociate EditorDr Alex Wawryk, lecturer, Law Schaol,

University of Adelaide

Assistant EditorsOr Arthur J Warden, Part-time lecturer

and Consu'ltant, Centre for Energy,Petroleum & Mineral Law & Policy,universlty of Oundee, Scotland

Janeth Warden-Fernilndez, Centre forEnergy, Petroleum & Mineral Law & Palicy,University 01 Oundee, Scotland (Mining)

Stephen Dow, Centre for Energy,Petroleum & Minerallaw & Policy,University of Oundee, Scotland

BibliographyMahmaud Reza Firoozmand

University of Dundee, Scotland

EXECUTlVE COMMITTEEChairmanGeaff Hewitt, London, United KingdomOr Philip Andrews-Speed, University af

Oundee, ScotlandJos A M Bos, Simmons & Simmons Trenit,

Rotterdam, NetherlandsMichacl Dale, Deneys Reilz, Marshalltown,

Soulh AfricaProfessor Thomas Walde, university of

Dundee, Scotland

EDITORIAL BOARDPablo Javier Alllan!, Estudio Bruzzan &

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legallCornpany Secretary, LNG ltd,lagos, Nigeria

Robert A Bassett, Darsey & Whitney lLP,Denver, USA

Patrick Blanchard, Head of ExecutiveOffice, Fuel Division, Electricit de France;Associate Professor of law, University 01Pars 10 Nanterre, France

Jos A M Bos, Simmons & Simmons Trenit,Rotterdam, Netherlands

Stphane A Brabant, Herbert Smith,Paris, Franee

Professor Adrian J Bradbrook, BonythonProfessor of Law, Universily of Adelaide,Adelaide, Australia

Albert T Chandler, Chandler & Thong-Ek,Bangkok, Thailand

Graham (oop, General Counsel, EnergyCI='W SQcrQ~i.;L8I'u=ok,

Brendan Devlin, Electricity and Gas UnIt,DG Transport and Energy, EuropeanCommission, Brussels, Belgium

Richard M Farmer, Thelen Reid & PriestLLP,New York, USA

Professor William Fax, Catholic Universilylaw Sehool, Washington oc. USA

Professor Zhiguo Gao, Exeeutive Director,China Institute for Marine Affairs, Beijing,PRChina

Jonathan Hines, LeBoeuf lamb Greenc &MacRae, Moscow, Russian Fedcration

Professor Moshe Hirsch, HcbrewUniversity. Jerusalem, Israel

Kaj Haber, Mannheimer Swartling AB,Stockholm, Sweden

Dr Nathalie Horbach, Centre for Trans-boundary Damage and Compensation,Amsterdam, Netherlands

Or Andrei Konaplyanik, Oeputy Secretary.General. Energy Charter Secretariat,Brussels, Belgium

Professor Charles leben, Panthon-Assas(Paris 2) University, Director of the Institutdes Hautes Etudes Internationales, Paris,France

Reinier Lock, O'Connor & Hannan lLP,Washington Oc. USA

Rogelio lopez-Velarde, Lopez.ValardeHeftyc Abogados, Mexieo OF,Mexico

Prafessor Alastair R lucas, Faculty of law,Universlty of Calgary, Alberta, Canada

David F Moroney, Kingswood, UKProfessor George (Rock) Pring, University

of Denver College of Law, Denver,Colorado, USA

Nelson lara Dos Reis, (aemi Minera;ao eMetalurgia SA, Rio de Janeiro, Brazil

Or AH Rodrguez Araque, President,Petroleos de Venezuela, Caracas,Venezuela

Professor Or Jens-Peter Schneider,University of Osnabrck, School of law,Osnabrck, Germany

Professor Ernest Smith, University of Texas$chaol 01 law, Austin, USA

Atef Suleiman, Legal Adviser, Abu OhabiNational Dil Company, United ArabEmirates

Professor Gillian O Triggs, Director,British Institute for International andComparative law, london

Jacqueline lang Weaver, A A WhiteProfessor of law, University of Houstonlaw Center, Houston, Texas, USA

Or lbibia Worika, Senior legal Counsel,OPEC, Vienna, Austria

Professor Donald N Zillman, Dean,University of Maine School of law,Portland, USA

Journal of Energy &Natural Resources Lawis the Journal 01 theInternatjonal BarAssociation's Seetionon Energy, Environment,Natural Resources andInfrastructure Law.It is published quarterlyand is cQ-sponsored bythe Centre for Energy,Petroleum & Minera) Law& Policy, University 01Dundee, Scotland.

Articles appearing in thisjournal are indexed in theEnvironmental PeriodicalsBibliography and theInternationaf Biblographyof the Social Sciences.

Journal of Energy & Natural Resourees LawVol23 No 4 November 2005 pp 385-605 ISSN0264 6811

Contents

Introduetion 385Janeth Warden-Femandez and Mahmoud Firoozmand

Indigenous Communities' Rights and MineralDevelopment 395Janeth Warden-Femandez

Canadian Aboriginal Law: Creating Certainty inResource Development 427

Thomas Isaac and Anthony Knox

Indigenous Peoples' Rights to Minerals and theMining Industry 465

Judge Antonie Gildenhuys

Paradise Lost or a SeeondChanee? 482William Manning

Rio Tinto and Indigenous Community AgreementMaking in Australia 499

Bruce Harvey and Simn Nish

Indigenous Peoples. Energy and EnvironmentalJustiee: the Pangue/Raleo Hydroeleetric Projeetin Chile's Alto BioBo 511

Marcos A Orellana

Preventing Violent Conflicts Caused by Infringementsof Indigenous Peoples' Rights: the Case01 theEcuadorian Amazon 529

Adenike Esan

Bibliography 550

Generallndex 599

The views expressed in this Journat are those 01 the contributors, and notnecessarily those 01 the International Bar Association.

385

Janeth Warden-Fernandez* and Mahmoud FiroozmandtCentre for Energy, Petroleum and Mineral Law and Poliey, University of Dundee

Introduction

DUNDEEProfessional Re/evance

4-8 September

Negatlatlng and Documenting PeboIeumIndusbJ Tl-ansactiDns-Lcx:arion: University of Dundee, 5cotland, UK

Fee: 1,795 Seminar Director: Dennis Stickley

2006Professional

Training Seminarsand Conference Information

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Internatlonal Petraleum FIscal SptemsAnalysls ami Deslgn*Location: University of Dundee, Scotland, UK

Fee: 1,795 Seminar Director: Daniel Johnston

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RlsIe Analysls and Declslon Maldng InPetraleam Exploratfon*Locaran: Unversity of Dundee, Scotland, UK

Fee: 1,995 Seminar Director: Daniel Johnston

15-19 May

Modern Praetia! In Petroleam Ucenslng*Locatan: University of Dundee, 5cotland, UK

Fee: 1,795 Seminar Director: Michael Bunter

22.26 May

Contracts used in IJtternatlonal PetroleumDevelopment*Lacatlan: University of Dundee, Scotland, UK

Fee: 1.795 5emjnar Directors: Praf Joho S loweand Praf Owen L Anderson

L~A#~~~..~~~.~~fu!~~alff~r~;~~(,19.20 June

Annual CEPMLP Mlnlng SemlnarLocation: London

Fee: to be confirmed Seminar Directors:Dr Elizabeth Bastida (CEPMlP) and

Magnus Eficsson(RawMaterials Group, Sweden)

8-10 August

AsIa 011and Cas LawLo(ation: Kuala Lumpur

Fee:100 Seminar Directors: Col Roberts (Petronas)and Stephen Dow (lones Day)

28.30 August

Multilateral ProJed NegotiatIDnsLocation: Carnoustie, 5corland

Fee:1,295 Seminar Director: Dennis Stickley

11-15 September

NegotIatIng and Managlng Natural GasConVacts'Location: University of Dundee, 5cotland, UK

Fee: 1,795 Seminar Director: Dennis Stickley

18-21 5eptemberPetroleam Industry Servfce Contl'acts .Location: University of Dundee, Scotland, UK

Fee: 995 Seminar Director: Dennis Stickley

18.22 5eptemberUK Gil and Cas LawLocation: Sr AndrewsFee:1,995 Seminar Directors:

Stephen Dow (CEPMlP)andPenelope Warne (CMSCameron McKenna)

Fo! fur.her informa/fOil regarrJing hes:? Seminars,please comaCl.

Hugh Gunn, Serninar Co.ordinatOlCEPMLP,University 01 Dundec, Dundec DDl 4HN

Scotland, UKTel: +44 (O) 1382 385871. Fax:+44 (O) 1382 345854

E-mail: h.j.b.gunn@dundec.ac.ukWebsite: www.c(.pmlp.org

Negotiated rates available for NGOs, academics andstudcnts - subject to attend,rnce numhers

'As aU economies begin io become inexorably linked into the universalist globalviUage, a process o/ basic redefinition o/ the nature and extent o/ pre-existingparadigms and phiwsophies is being/orced upon indigencrus peopies warldwide.Worldviews that once extended only to the next vaUey are being expanded to aplanetary perspective. lnherently holistic and all-encompassing traditionaltribal phiwsophieal pereeptions and perspedives, lifeworlds that once servedto connect cause and eliect in a culturally aceeptable manner, ail in manyways to explain present coneepts o/ reality'

Brian GoehringIndigencrus Peoples o/ the World:

An Introduction to loor Pasl, Fresent andFuture, 1993.

Globalisation has catalysed the development of natural resources projects inmore remote areas. Nowadays, natural resources industries do not constraintheir activities to their own countries. Using the advantages offered by theliberalisation ofinternational markets and technological advanccs, they havemoved their activities beyond boundaries. This increasing development ofnatural resources projects in remote areas has increased the awareness ofthe existence of indigenous peoples around the world.In almost al! the remote areas of the globe, the presenee of peoples

considered indigenous is cncountered. They are spedal people and in manycases they have inhabited countries or regions that have been subjected to

'" janeth Warden-Fernandez is a Research and Teaching Fellow, an Advisor of thc MiningPrograrnme and the Manager of the Distance Learning Programme at the Centre for Energy,Petroleum. Mineral Law and Policy at the University ofDundee (CEPMLP/Dundee). Shecan be contacted by e-mail atj.z.wardcnfernandez@dundee.ac.uk.

t Mahmoud Reza Firoozmand is a Doctoral Research Fcllow at CEPMLP. Before cornmencinghis PhD in 2001, Mahmoud had worked as a lawyer in the National Iranian Oil Company(NIOC). He can be contacted at m.r.firo01.m:mrlftlrlllndee.3.c_uic

394 JOURNAL OF ENERGY& NATURAL REsOURCES LAw Vol 23 No 4 2005 395

conflicts can be avoided and peace ensured in conflict zones would be lolook for a workable agreerncnt between host governments, MOCs andindigenous peoples, such as mase that exist in Australia and Canada.

Indigenous Communities'Rights and MineralDevelopmentBy Janeth Warden-Fernandez*

The contemporary trend in globalisation dedicated towards an integrated worfdeconomy and rapid advances in technology have accelerated the developmentof natural resources throughout the world. This fast tracking of such develop-ment has caused the migratan of mining companies into remoter regions,hitherto untouched. In sorne cases these terrains are inhabited by indigenouspeoples who see in such development a threat leading to the infringement oftheir traditional rights related to the use and management of lands whichthey perceive are theirs by right of tradition and usage. Consequently, thisprojected development of traditionallands has precipitated confliets that cangenerate stagnation in the economic growth of countries, espedally thosethat rely heavily on the development of their natural resources. If this is notredressed it could be an on90in9 obstacle to the development of naturalresources. Such conflicts have arisen because of the diverging interests of theprincipal stakeholders in mineral development namely sta tes, investors andthe indigenous communities. Therefore with the aim of avoiding this type ofconflict. it is imperative to find the fairest and most equitable approach, whichcaters objectively for all the interests involved.

Mining activities are.obviously limited to the areas in which mineral resourcesare located. In many countries, the developrncnt of natural resources is secoas ao esseotial prerequisite for economic growth. The accelerating

* Jancth Warden-Fernandez is a Research and Teaching Fellow, an Advisor of the MiningProgramme and the Manager ofthe Distance Learning Prograrnme at the Centre for Energy.Petroleum, Minerallaw and Palicy al the University ofDundee (CEPMLP/Dundee). Shecan he conl.ac.l:e:d bv fO_m;i1 ;al L7__\&I::Irnnf"'rnn...l .~ nn_ r le

396 JOURNAL o, ENERGY& NATURAL REsOURCESLAw Vol 23 No 4 2005 INDIGENOUS COMMUNmES' RIGl-ITS AND MINERAL DEVELOPMENT 397

development of natural resourees throughout the world, triggered by theliberalisation oC international markets, technological advances and thepromise of finding more opportunities in pIaces hitherto untouched, hasled mining investors lo focus on remo te areas. (The term 'remote' isdeliberately used to emphasise the untouched naturc of such lacatians, whichare far beyond the confines oflarge urban and industrial centres. I) In manycases such areas are located within the homelands of the indigenous peopIesof the target countries, in which they have survived in their traditional waywhile prescrving their cultural identity. The main factors that contributedto this survival were undoubtedly the remoteness of these lands and the faetthat they were eonsidered by modern industry to be relatively unattraetivein eeonomic terms.

Under such circumstances, development precipitates confliets beeause ofdiverging interests2: the interest of the state in obtaining more revenue and eneouragingeeonomie aetivity by increasing the development of natural rcsourcesthrough the investtnent of private capital;

the interest of the investor to do business and earn a profit; and the interest of indigenous cornmunities, which goes beyond traditionaleeonomie eonsiderations, sueh as prcserving their culture, lifestyles andbiodiversity as well as proteeting the access and use of land.!

Cordcs pointed OUlthal 'Remoleness, in the modcrn era, oflen prescnts companies withtwo.unique challenges. Qne is the challenge lOengineering design posed by operating inenVlronmentally extreme and umested terrain. This adds lOthe uncertainty associaled withpossible environmental failures and lhe prospecl of harsh economic and politicalconsequences. The other is the possibility of operating in areas populaled by indigenouspeoples how viewand use land differently than lhat which is cuslomary in modern societies.These peoples are now pressing their views and demands lO participale in decisions veryaggressively and with growing success': J ACordes, Mining and lndigenaus Peoples, paperpresen~ed al International Mining Coursc, CEPMLP,Dundee University, 1997.

2 See O OSlensson, 'The Stakeholders: Interesl and Objectives', in SustainableDeuelopmmt andtht FutuTt: o/ Mineral Invtstmmt (2000).

3 The SludyofDiscrimination againsl Indigenous Peoples, prepared by the Special RapporleurJ R ~artin~z Cobo, sta~es:.'Ilis essential lOknow and understand the deeply spirilual specialrelauonshlp between mdlgenous peoples and their land as basic lo their exislence as suchand lo al! their beliefs, customs, lraditions and culture. For such peoples, the land is nOl~erel~a r,ossessionand a meansofproduction. The entire relationship between the spiritualJifeof mdlgenous peoples and Mother Earth, and their land, has a greal many deep-sealedimplications. Their land is not a commodity which can be acquired, bul a malerial e1emenllO be enjoyed reely.' This lexl is ciled in the Final working paper on indigenous peoplesand their relationship to land, prepared by the Special Rapporleur, Erica-Irene A Dacs.~~il~~_~~~~~~, Economic and Social Council, Commission on Human rights, E/CN.4/

Indigenous communities' relationship with the land is deep-seated andfrequently based on spiritual and religious beliefs that form part of theirheritage. It is diffieult for Western societies to comprehend the strongconneetion between indigenous peoples, their land and its resources. Thiscultural ehasm can often be bridged only with diffieulty.'

In the case of exploration and mining, development can confliet with therights ofindigenous peoples,5 especially those related to the use, access andmanagement of their lands and waters, leading in many cases to stagnationof mining ventures until problems have becn resolved. This stagnation canhave an adverse impact on the economic growth of a country as a whole.The opposition from indigenous communities to this type of developmentis certainly, in cases, understandable, as in the past the exploitation of mineralresources has provided substantial profits for governments and miningeompanies, who ignored the faet that the resources were loeated on thelands of indigenous peoples and that the peoples generally did not reeeiveany of these benefits.6 However, there is now a foeus on how to create adequateinstrurnents to allow mineral activity under conditions that wiIl contributeto the global transition towards sustainable dcvclopment.'

4 The World Bank in its BO 4.10, which replaccs 00 4.20, recognises that 'thc identitiesand cultures of indigenous peoples are inexuicably linked to the lands on which thelive and lhe nalural reSOUTceson which they dependo These distincl circumstance:expose indigenous peoples to differenl types ofrisks and levels ofimpacts rom dcvclopmentprojects, induding loss oC identity, culture, and cuslomary livelihoods, as well as exposurelO disease': at hup:/ /wbln0018.worldbank.org/Instilutional/Manuals/OpManual.nsf/B52929624EB2A3538525672E00775F66/0F7D6F3F04D D70398525672C007D08ED?OpenOocument

5 The final report on indigenous peoples, compiled by the Foresl People Prograrnme as acontribution lo the World Bank's Extractive Industries Review (EIR) , highlighted the lhreatsthat resource developmenl projects can impose on indigenous peoples.

6 For a detailed analysis of the impacts of the mining, oil and gas industry on indigenouspeoples' rights, see Extracting.Pronlius: Indigenous Peop~, Extractiv~ IndustTUs and tht WorldBank, Synthesis Report, 2003, al hup:! /iris36.worldbank.org/domdoc/PRD/Olher/PRDOCon lainer.nsf/ All+Documen ts/ 85256D240074B56385256FF6006E5E7 A/$File/volume6indigenous.pdf.

7 The application ofthe concepl ofsustainable developmenl lo the mineral industry involveslhe promotion of and contribution lO the well-being and welfare of the people of the hosts~le, 'loday witho~l reducing lhe pOlential for future generations lo do the same': Mining,Mmerals and Sustamable Oevelopmenl projecl (MMSD), BTtaking Nw Ground (2002), P 24.In 2003, me lnternational Council oC Mines and Metals (ICMM) approved the ICMMprincipies, againsl which its members and other companies thal have agreed lOadopt thesamc pcrformance obligations as ICMM memhers should measure lhe suslainabledevelopmenl performance of lheir activities. Compliance with these principies will bea measure of corporate performance: W'WW.icmm.com/publications/1CMM_Principles_en.odf.

398 JOURNAL OF ENERGY & NATURAL REsOUReES UW Vol23 No 4 2005 INDIGENOUS COMMUNmES' RrGHTS ANO MINERAL DEVELOPMENT 399

Within this context, and with the aim o avoiding conflicts in the courseof the development o mineral resources, the important question is: whatwill be the best, fairest and most equitable approaeh that respeets all theinterests involved? T help answer this question, this artide provides anovervicw o the differcnt legal approaches related to the recagnitian andaffirmation of the existence of indigenous rights in countries and regionswith a history o colonisation.

Defhtion oC indigenous peoples

There is no universal definition of indigenous people. Many studies anddiscourses have attempted to formulate a definition but with Httle success,hence a definition ofindigenous pcoples at internationallaw does not exist,despite the fact that internationallaw has recognised the rights ofindigenouspeoples to exist as 'distinct, separate peoplcs.8 with tbeir own cultural identity.Malanezuk highlights the diffieulty in understanding with clarity the maindifference between the definition of 'indigenous peoples' and 'minorities'.He argues how the conceptof'peoples' implies asocial identitywith particularcharacteristics and with a relationship with a territory. Instead, minoritiessuggest a 'numerical inferiority', which is not necessarily synonyrnous withindigenous peoples. In the case of the concept of indigenous peoples heconcludes tllat it comprises elements of minorities and peoples. Nevertheless,what in reality counts is the legal context and instrument in which this conceptis applied'

In 1982, the United Nations Economic and Social Council, Commissionon Human Rights, adopted a definilion as follows:

'Indigenous populalions are composed of the existing descendants ofthe peoples who inhabited the present territory of a country wholIy orpartially at the time when persons of a different culture or ethnic originarrived there from other parts of the world, overcame them, and byconquest, settlement or other means, rcduced them to a non-dominantor colonial situation; who today live more in conformity with theirparticular social, economic and cultural customs and traditions thanwith the institutions of the country of which they now form a part,under a state structure that incorporates mainly the national, socialand cultural characteristics of other segments of the population that

8 For a comprehensive study 00 the evolutian of human rights standards and its impact 00damestic laws in Australia, Canada and New Zealand, sce lorns Magallanes, CJ, 'InternationalHuman Rights and their Impact 00 Domestic Law 00 lodigenous Peoples' Rights in Australia,Canada and New Zealand', in Indigenous Peapks Rights in a Australia, Ganada & New Zealand(1999).

9 P Malanczuk, Modern lntroduetion to lnternational Law (Landan: Routledgc, 1997).

are predominant o Although they have llot suffered conquest arcolonisation, isolated or marginal groups existing in the country shouldbe regarded as covered by the notion of Indigenous Populations forthe following rcasaos:(a) they are descendants of groups which were in the territory of the

country al the time when other groups of differentcultures or ethnicorigins arrived there;

(b) preeisely beeause of their isolation from other segments of thecountry's population they have preserved almost intact the customsand traditions of their ancestors which are similar to thosecharacterised as Indigenous;

(e) they are, evell if only formally, plaeed under a state strueture, whichincorporates national, social and cultural characteristics, alien totheirs.'lO

In 1983,J R Martinez Cobo, the Speeial Rapporteur of the Sub-Commissionon Prevention ofDiscrimination and Protection ofMioorities, in his Study o/the Problem o/ Dismmination Against Indigenous Populations, elaborated adefinition of indigenous peoples that is commonly accepted and uscd bythe Working Croup 00 Indigenous Populationsll:

'lndigenous communities, peopiesand nations [emphasis addedJ are thasewhich, having a hislorical continuit.y with pre-invasion and pre-eolonialsocieties that devel?ped on their territories, consider thmselves distinctfrom other sectors of the societies now prcvailing 00 those territories,or parts of them. They forro at present non-dominant sectors of societ.yand are determined to preserve, develop and transmit to futuregenerations their ancestral territories, and thcir ethnic identity, as thebasis of their continued existence as peoples, in accordance with theirown cultural patterns, social institutions and legal system. This historicalcontinuit.y may consist of the continuation, for an extended periodreaching into the present of one or more of the following factors:(a) Oeeupation of aneestrallands, or at least of part of them;(b) Common aneestry with the original oeeupants of these lands;(c) Culture in general, or in specific manifestations (such as religion,

living under a tribal system, membership of an indigenouscornmunity, dress, means of livelihood, lifest.yle,etc);

(d) Language (whether used as the only language, as mother-tongue,as the habitual means of communication at home or in the farnily,or as the main, preferred, habitual, general or normallanguage);

10 In B Goehring, lndigenous PeojJks ofthe World (Canada: Purich Publishing, 1993), p 5.11 UN Doc. E/CN.4/Sub.2/1983/2I/Add 8, par", 379-381.

400JOURNAL OF ENERGY & NATURAL REsOURcrs LAw Vol 23 No 4 2005

INDIGENOUS COMMUNITlF ..S' RICHTS AND MINERAL DEVELOPMF.NT 401(e) Residence 00 certain parts afthe country or in cert"," f

th' l.4:lIn regIDns O

e world;(1) Other relevant factors.

On an individual basis, an indigenous person is aue who b 1these indigenous populations through self-identificati . cd.ongs to(. 00 as In 1genousgroup. conscIOusness) and is recognised and acccpted by these

populatIons as one of its members (acceptance by the group). Thispreserves for these cornmunitics the sovereign right and power to decidewho belongs to them, without externa! interference

Thornberry12 highlights how the Working Group on Ind;genous Populations~n ~any years of discussions. has not yet adopted a dear definition fa:mdlgcnous peoples; the group exccutes its task 'bearing in mind' M tI.Cobo's I:5 D . ar nez

~Cport. unng the 15th scssion of the Working Group on IndigenousPopulatlOns the Spec. 1Ra ., .' la pporteur E 1Daes pomted out that 'no singledefinrtIon could capture th d. . f. .. . . e lVCfSlty o mdlgenous peoples worldwide, andI~wa~notdeslrable or posslble to arrive al a universal definition al the present~lm~. Orre of the observers highlightcd that the working definition DE~ndlg:nous peopl~s providcd in Martinez Cobo's report will suffice 'toIdenuf}r who constltute an Indigenous Peoplc' Furth. . ermore, many of thereprcsentauves oE indigenous peoplcs who participated in the session saidthere w~ no need lo provide 3n in terna tion al definition of indigenouspeoples smce there was no definition f" '" - .,. o mmonues at mternatlOnaJ lawtherefore Itwould be discriminatory if "indigenous peopIes" alone needc~

]2 P Thorn berry, /ndigencrns P,.nhks nd H Riat 2-60. WJ' a uman ghts ( Manchester: Juris Publishing, 2002),

]3 ThcWorkingGroupon1 d' PI..d I n tgenous opu atlOnsmcludes as partofits mandatc' '(a) Re .

fevedopment~pe,rtaining to the promotion and protcction ofhuman rightsandftmdamc::ree oms of mdlgcnous nnpulati . 1 d. .G I r~ ons, me u mg Informanon requested by the Secretar enera annually from governments, spccialised ' '. y

organisations and non-governmental organisations ~~::~:~':~~:~~ mter&.overnmentalof indigenous peoples, to analyse such materials and to submit i~'partl~u1~rlythosereeommendations to the Sub-Com " ~' " conc USlons andrccommmdations conta'1IM'!he mlSSlon, anng In mznd inter alia tM conclusions andMartinc. Cobo, mtitle~ "St: o :t;t o{~ SMci~l~p!(JT~r o/ tht Sub-Commission, Mr Josi R(E/CN,4/Sub,2/1986/7 an~ ~dd,c; (emo~:~~:;::~~ against indigmous pcpulationsn,Other definitions and uses of the f'"

Convention No 169 at ' c~ncept o mdtgeno~s peoples are includcd in ILOOP/BP 4 JO o I d.' WWW.I1o.org/llolex/cgi-lex/convde.pl?C169. the World BankMa n u a ,'s / O~ ~ al~:n:~snPefo;~e~ 2a~:ttp://wbln0018,worldbank.org/lnstitutional/OF7D6F3F04DD7039852~6;2C007D08:~~~ E B2A 3 5 3 8 5 25 6 7 2 E OO7 75 F 6 6 /DepartmentofEconomic and Soc'alAff: ' ,penDocument and UOlted NationsPFII%202004%20WS,]%203%2~Defin~~::,~:;v,un.org/ esa/socdev/unpfiV documents/

For a dctailcd study oC the historical evolution of the iro .act of thc dnatural reSOurceson indigenous rights sec Cord 1 bo P evelopment of, eS,n a ve.

to be defined'. The group also concluded that the cntena set up in Martinezeobo's report was enough to identify 'whether a person or community wasindigenous or not', Final1y, one of thc rccornmcndations of the WorkingGroup regarding the definition of indigenous peoples was 'to arrive at alegal and social framework which could be used as a reference, and toharmonise action and protect the rights of indigenous peoples' ,14 Incon sequen ce, what exists is a detailed concept of indigenous peoples, whichencapsulates the spedal characteristics that identify them: they aredescendants of the peoples who inhabited the country before colonisation;they have preservcd their custorns and traditions - cultural distinctiveness-and they are placed under a state structure different to their own.15 TheOrganisation of American States, in the proposed American Declaration onthe Rights of Indigenous Peoples, says that the criterion to determine if aparticular group is indigenous is their self-identification as SUCh.16

Impact of mining activities 00 indigeoous rights

The particular effect of mining activities on indigcnous peoples' rights andthe socio-economic, cultural and environmental impacts in general are issuesof considerable contemporary importance, as was documented in BreakingNew Ground, the final report of the Mining, Minerals and SustainableDevelopment Project.17 Indigenous communities, as described aboye, areviewed internationally as being different and therefore subjcct to specialtreatrncnt.18 Indigenous peoples have considered themselves differcnt froro

]4 Special Rapporteur, Enca Irene ADaes, &PCTrt01tite WV'TkingGroup on /ndigmous Populationson itsfifrenth s~sion. E/CNA/Sub.2/1997/14.

15 Sce in general A Diaz, lnt.ernational Standard-Sttting on the Right.s o/lndigmous Ptoples:/mplications lar Mineral Drotlopmcnt in Africa 7-3 CEPMLP, online journal, a[ www.dundee .ac.uk/ ccpmlp/ journal/hunl/ vol7/ articlc7.3.h tm!.

16 www.cidh.org/indigcnous.hun,17 MMSD,Brtaking New Ground (2002). The WorldBank Group (WBG)ha~stated that 'Mining,

aswell as the cessation oCmining where it has become uneconomic, can a150be a cause oCpoverty or adversely affect the living conditions oCthe poor and other vulnerable groups',For a detailed Iist of potential negativc impacts of the mining activities see World Bank,Mining and Poverty Reduction, at http://web,worldbank,org/WBSJTE/EXTERNAL/TOPI es/EXTOGMC/O"con tentMDK:202461 Ol-menuPK:509413-pagePK: 148956-piPK:2166]B-theSite PK:336930,00,hun1,

18 Anara and Williams sUte: 'One of thc most notable feature5 oC the contemporaryinternationaI human rights regime has beeo the reeognition ofindigenous peopIes asspecialsubjeets oC concern. A diserete body oCinternational human rights law upholding thecollective nghts of indigenous peoples has emerged and is rapidly developing': S Anayaand RA WilIiams, 'The Protection oflndigcnous Peoples' Rights Over Lands and NaturalResources Undcr the Inter-Arncrican Human Rights System' (2001) ]4 Harvard HumanRig"" urna, Spring 2001.

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,INDlCENOUS COMMUNI1lES' RICHTS ANO MINERAL DEVELOPMENT 403

the new cornmunity moving iota their territory and have generally persistedwith the desire to preserve their own culture, ethnic identity and politicaland social systems.19

The coloniser, conquerar or invader was generally motivated by theacquisition of new terraio, which therefore - in the view of the legal systemthey brought with them - usually negated the rights of indigenous peoples.20

In the last tWQ decades, however, internalional bodies have draftedinstruments that give the indigenous cornmunity rights over land and theright to participate in the decision-making process in relation to issues thataffeet them, especially those related lo the development and managementof natural resources.21

There is clearly an increasing global awarencss concerning the rccognitionof indigenous rights over land. In the case of the development of naturalresources, espccially mineral resources, this issue is of great importan ce.Mining companies are interested in finding good projects in which they caninvest to obtain a profit. In order to rcalise this aim, companies initial1yselect the most promising arcas in the New World countries situated inAustralasia and the Americas, and to sorne extent in Africa.22 AH these newcountries were and still are inhabited by indigenous communities who havc

19 M A Chubb, 'nternauonal Human Righu and N(JTI.Rmwabk Natural Resources: AutachthanousRighu aj Influence Over the MineraL Development Prouss, ImplicatianJ far CorpflYate Palicy,Dissertation to obtain LLM Degree in Mineral Law and Policy, CPMLP, 1997, at 2.

20 Brownlie sets out five models of colonisation:(1) An extension of powers without the necessity of any incursion of settlers into the country

and the recovery of independence without a majar dernogrdphic change, eg Ghanaand Nigeria.

(2) Typical colonisation with an inflow of settlers, eg Kenya and Southern Rhodesia. Theimportance of this model is that when de-eolonisation is achieved the sell..lers can beallowed to stay with the compromise of taking citizenship and remaining part of amultiracial society.

(3) Aggressive colonisation, with the aim of climinating the indigcnous cornrnunity or atleast evicting them from their lands, eg Indians in South America.

(4) So-called 'self-determination', in which indigenous communities, as minoritycommunities, have an opportunity lOmake a decision on their nationality.

(5) The 'League ofNations' mandate, which restrained the radical forms of colonisation.I Brownlie, Treat~ and lndigmous Pwpks (Canada: Purich Publishing, 1992), pp 1-3.

21 For a comprehensive review ofme evolution ofindigenous pcoples' rights over land underinternationallaw, sce MOrellana, 'Indigcnous Peoples, Mining and International Law', inFinding Common Ground. report published by me International Institute for Environmcntand Development, 2003. For a detailed review on '(i) me practice under the internationalsystem on the use of the terms "Indigenous Peoples" and 'Tribal People"; and () anoverview of the emerging principies of international law on indigenous peoples, andme cxtent to which the proposed Bank Policy is consistent with such principIes', see http:/Isiteresources.worldbank.org/INTINDPEOPLE/Publications/2057] 167 ILegal %20Note.pdf.

different perceptions of the development of their lands that were theirtraditional property. This potential conflict of interests imposcd a burden00 host states of resolving the impasse, since security of tenure is a key issuein investment decision-making for mining projects.

When deciding to invest in mineral developmcnt, it is of vital importanceto know who owns the resourccs. With the exception of the United States,and a few other countries or with rcspect to specified minerals, mineralownership is generally vested in the state. In Latin American countries witha tradition of civillaw and a regalian systcm,2~the state has unrestricted andexclusive dominion or proprietary rights over mines and minerals. In civillaw countries, proprietorship over the land does not extend to the ownershipof minerals of the subsurface. In countries with a coromon law tradition, theowner of the land generally owns the minerals located in the subsurfaceusque ad caelos usque ad inJeros.2'4 In the case of mineral resources located inindigcnous lands, the deve10pment of such wealth can generate conflictsand in sorne cases violence because they put in direct confrontation theviews of Western societies and indigenous peoples regarding the surfaccand sub-surface rights distinction. Indigenous peoples oflen hold in highregard religious or spiritual attachments that may not be known orunderstood by outsiders.25

22 Connell and Howitt point out that 'the expansion of mining into more remote areas hascoincided with the depletion of established mines, increasing cos15 in many metropolitanmines, ncw methods of eXlracting mineral resources (especially epithermal gold) and moreadequatc geological exploration and surveys':] ConncIl and R Howitt (eds) , Mining andlndigenuus Peopks in Australasia (1991), P 2.

23 In me -regalian system lhe state is the original owner of the mineraIs without any considerationof who owns the surface of the land. The other system is called the accession system, inwhich the ownerofthe land is the ownerofthe mine as well. UnderUS legislation, mineralsbelong to me proprietor oC the land, therefore the exploration and cxploitation of minesare subject to private agreemen15. Furthermore, in mining counmes with a eommon lawsystem such as the United States, Canada and Australia, 'a large proportion of miningoccurs on lands hcld by the government - "public domain"lands, "Crown lands", or thelike - where private surface oeeupants, if any, are usually governmenl tenants who can berequired lO eave in favour ofmincral development': MMSD, Breaking NroJOrottnd: MiningMinerals and Sustainable Dtvelcpment (2002). A1so see T Walde, 'Third World Minerallnvesunent Policies in the Late 1980s; From Restriction Back to Business' (1988) :3MineraLProassingandExtractive MetaUurgy Reuiew 121-182 and World Bank, Strategyfar African Mining,World Bank Technical Paper No 181 (1992).

24 TWatde, MinerolDtvtwpment gislatWn: Rtsull and lnstrument alMineral DrotLopmmt Planning,12 (1) NRF (t988).

25 See, in general, International Work Group for Indigenous Affairs, 'lndigenous Peoplesand Land Rights', at www.iwgia.org/sw2:3I.asp. Scc also the final working paper preparcdby the Special Rapporteur, Irene-Erica A Daes, on lndigenous peoples and their rclationshipto land, E/CN.4/Sub.2/2001/21, at www.hri.ca/forthcrecord2001/doeumentation/commissionl e-en4-sub2.200 1-21.h tIn.

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What is needed are tooIs that will facilitate a process that leads to anequitable dcvelopment of the mineral resources of indigenous lands, whereappropriate, through the participation of these cornmunities in decision-making over a potencial mining project and the distribution of its wealth ina fair and equitable way." Indigenous peoples should have the right to free,. d'C d 27pnor an mlorme cansent. The ooly way lo guarantec that a mining

venture promotes sustainable development is through the participation ofaH key stakeholders in the decision-making proccss - governments, miningcompanies and cornmunities, including indigenollS cornmunities, where theirrights are affected.28

Australia

The mining industry is a key activity to the Australian econorny.29 Australia isa big producer and exporter of metals and minerals, including gold, coal,iron ore, base metals and alumina. Owing to the vast size ofthe country, the

26 Convention No 169 eoncerning lndigenous and Tribal PeopIes in Independent Counlries,adopted by ihe General Conference of the International Labour Organization (ILO)(Geneva, 27 June 1989). This Convention, which carne into force on 5 September 1991,contemplates in itsArt 7: 'The peoples concerned shall have the right to decide their ownpliorities for the process of development as it affects their lives, beliefs, institUlions andspiritual well-bcing and the lands they occupy or otherwise use, and to exercise control, tothe extent possible over their owo cconomic. socia! and cuhuraI development. In additionuley shall participate in the formularion, implementation and evaluation of plans andprogrammes for national and regional development which mar affect them directIy.'

27 World Bank BP 4.10, 2005, No 2, reaffirms ihe right ofindigenous peoples to 'Free, Prior,and lnforrned Consultation'. When a project affects lndigenous Peoples, the TI (Bank'sIask tean) assists the borrower in carrying out free. prior, and informed consultation with~fected ~om~unities about thc proposed project throughout the projcct cycle, takinglOto conslderatlon lhe following: (a) "free, prior and informed consultation"isconsultationlhat occurs freely and voluntarily, withOUl any externa! manipulation, interference, orcoercion, for which (he parties consulted have prior access to information on the imentan~ scope ofthe proposed project in a culturally appropriate manner, form, and language... : http://wblnOOI8. worldbank.org/lnstitulionaI/Manuals/OpManuaI.nsf/B52929624EB2A3538525672E00775F66/DBB9575225027E678525703100541C7D?OpenDocument.

28 ~or a.d~tailed ~ccount of_thecharacteristics. roles, interests and objectives of the stakeholdersm ml~mg prOJects, see Ostensson, n 2 abovc, at 3-1/30. Also see O stensson, 'Playcrs inthe Mmeral Industry', in E Bastida, T W;iJdc andJ Warden-Fernandez, lntn'national andOrmparative Mineral Law and PoliCj (The Hague: Kluwer L.awInternational 2005) 429-451. ' ,pp

29 'Since ~~ late 19805, res.ource extraction has annually contributed around five per cent ofAustralia sGross Domestlc Producto Over the past three decadcs, mineral and energy exports~ave ann.uaIly average~ more than 35 per cent of Australia's total receipts. The miningmdustry IS ~lle ofthe blg~est contributors to Austra.lia's export trade and it is a vital part ofthe Australian economy: see Australian Stock Exchange, at www.asx.com.au/investor/industry / mining/ overview.huu.

industry has developed an extensive, essential infrastructure thathas broughtprogress to isolated locations. Since the last century, the ownership ofminerals in Australia has been vested in the Crown.

Wcstern Australia, Queensland and the Northern Territory, which providemore than 85 per cent of Australia's total mineral production, also have thelargest proportion of potential claimable land, such as vacant Crown land.Since the 19905, debates about native title clams have had a marked negativeimpact on the mining industry, particularly on account ofunclear legislationand the impetus that the native title issue has had in international fora.

In Australia, indigenous peoples'!O rights are not cnshrined in theConstitution; they largely arise and are protected under common law. Inthis role, common law is an evolving legal system. Given that Australia sharesorigins with other common law countries with a comparable history ofcolonisation, its courts also draw 00 the experiences oreanada, New Zealandand the United States.

When English settlers arrived in 1788, they regarded the Aborigines whooccupied Australia for over 40,000 years as primitive. Thcre was no advancedsystem of government, and the indigenous population laeked a well-organisedsocial systcm. Subsequently, the Europcan settlers did not initially recognisethe sovereignty of the Aborigines.31 No trcaties or agreements were signed.In other words, the Austtalian indigenous people were ignored52 and Australia

30 In Australia ihe term 'Aboriginal cornmunities' is generally used when referring toindigenous peoplcs. The right.s and interests ofindigenous pcoples derived frorn traditionallaws and customs over land and water and recognised at common law are known as nativetitIe.

31 BartIeu. when making reference to the legal history of native title in Australia. says 'In theabsence ofwhat the common lawcourts then perceived to be an ~eslablished system oflaw"the territorywas considercd subject to "settlemcnt" and the introduction an application ofcommon law.Australia was characterised as such a territory. As the indigenous inhabitantsof the territory were so disregarded, so initially did the common law of Australia enable adisrcgard lO their rights to land. The common law of Australia has only very belatedlyrecognised native titIe to traditional land and only to the residue that was left to theindigenous inhabitants'. RH Bartlen, Nativ~ Title in Australia (Sydney; Butterwonhs, 2000),p3.

32 The British Crown acquired sovereignty over Australian land on the 'grounds ofinjustice',a" is pointed out by Wells and Doyle: 'The notion of the ~discovery~ of lands acquiringabsolute sovereignty over those lands, is equally unjust: the principie that the "discovery~of land'. inhabited by an iodigenous population vests sovereignty in the "discovering~nation i5 (similarly) based 00 the proposition that Indigenous people are insufficientIycivilised or Christian to merit being viewcd as competing sovercign powers. Fortified bythe ilIusion of superiority, European powers claimed that the act of settlement in itselfdivests Indigenous Peoples of any and aH sovereign authority over their land and their

Conlinued fJtJulzaj

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was considered as terra nullius.3~As a consequence, the Crown acquiredcomplete sovercignty ayer Australian tcrritory and absolute property rightsayer the entire land.34 Between then and the early 1980s, Aboriginalcornmunities were grantcd sorne statutory rights related lo lands that theyused for hunting or ceremonial purpases and occasionalIy lo constructdwellings. Froro the middle of the last century onwards, Aboriginal reserveswere cstablished for the use and benefit oC the indigenous cornmunities.The land was sharcd with Aboriginal cornmunities without the existence of aclearly defined legal regime that reeognised their rights.

In 1982, thc Mabo case was initiated against the State of Queensland overthe claims to lands of the Murray Islanders. In 1992, le High Court ofAustralia found sufficient evidence to decide that these lands were theproperty of the indigenous community before the British settlerncnt andconsequently the concept of land ownership survived the annexation ofAustralia to the British Crown and its assertion of sovereignty. The decisionrejected thc position that declared 'Australia a vacant uninhabited landbelonging to no-one - terra nuUius',35 because this was not the case, since

people': BWells andj Doyle, 'Reconciliation and the Constitution', in Indigrnous AwtraLiansand the Law (E johnston, M Hinton and D Rigney. eds, Sydney: Cavendish Publishing,1997), p 187. P Havemann, in providing a chronology oC the colonisation of Australia bythe British, states; 'year 1776, Navy's First Fleet under Captainjarnes cook claims to acquirecontinent for British Crown by virtue oC "discovery" o Terra Nullius (land belong to noone) Discovery consist oC coming ashore at Botany Bay: (Sydney). Orders we~e to acquireterritory with the "consent oC the natives", bOl Cook does not consider the Aboriginalpeople he encounters capable oCgiving such consent': P Havemann (ed), lndigmous Peoples'Rights in AUJtralia, Canada, &New ilaland (Auckland: Oxford University Press, 1999), P 25.

33 Yerro nullius means empty land o~ no man's land. This term was a legal fiction that in the17th ccntury allowed European colonial pOWCrs to assume control of land that wasunclaimed. This principie wasextended during the 18th century allowing European powersto 'settle in lands occupied by "backguard" people where no system o laws or ownership ofproperty was held to existo The Swiss philosopher and internationallaw theorist Emerichde Vattel, building on the philosophy ofjohn Locke and others, proposed that tnTa nulliusalso applied where land was oot cultivated by indigenous iohabitants. Since the land wasnot being cultivated, it was not being put to good use, therefore those who could cultivatethe land had a right to the land', at hup://en.wikipedia.org/wiki/Terra_Nullius.

Bartlen states that 'by 1992 a distioction was recognised io international law and thecoulInon law between territories acquired by conquest or cession and those acquired bysettlement. Territory inhabited bya people who did not have a recognised social or polticalorganization was considered "terra nullius" in international law. Sovereignty over terranullius was established by settlernent or effective occupation by a sovereign states'. SeeBartlen, n 31 aboye, at 23 (2.21).

34 For a comprehensive review o the legal history oC native title, sce Bartlett, n 31 aboye, al3-32.

35 Brennanj, in his reasoning forjudgment, emphasised how in cOJ}lemporary law the notionthat land inhabited by indigcnous people who were regarded as 'Iow in the scale of socialorganisation' may be c1assified as 'terra nullius' is not acceptable. He went further, remarking~

indigenous people were living there first. The Mabo decision was appliedinitially ooly to the Murray Islands, not to mainland Australia.56

For Aboriginal people, thc Mabo decision was just recognition of thcinjustice perpetrated whcn the colonists arrived and deprivcd them of theirfreedom, culture and religious beliefs, which greatly diminished the self-determination rights of their cornmunity. This principie of self-detcrminationis upheld by the Australian indigenous cornmunities, founded on the factthat the British colonists arrived only 200 years ago, by which time theAborigines had already been living there for more than 40,000 years, with'total control ovcr their Uves'.The various 'indigenous rights are channelledthrough the self-dctcrmiriatlon principie. These have been classified intothree main categories:

'autonomy rights: which focus upon the right oC Indigenous Peoples todetermine the wayin which they live and control their social, cconomicand political systcm; identity rights: which are related to thc right to existas distinct peoples with a distinct culture; and territory and resource rights:which encompass such things as land entitlements, the right to theresources of that land, and the use of those resources.'"

The judgment was also seen as a success because it was based 00 laws thatthe same colonists brought with them and was not a 'political favour'. At thetime, this decisio~ led to the filing ofmany claims - sorne of thern unfounded-with an obvious negative consequcnce for the mining industry. The decisionalso posed severa! politieal and legal problems for the states, including:

'The common lawofthiscountrywould perpetuate injustice ifitwcre to continue to embracethe enlarged notion of terTa nullius and to persist in characterising the indigenous inhabitanlSof the Australian colonies as people too low in the scale o social organisation t beacknowledged as possessing rights and interest~ in landstates'; (1992) 175 CLR 1 at 39, 41-42,63.

36 The Mabo decision. which did no[ fix any scope and/or extcnt o the nalure of the nativetille. created uncertainty in the land holder and lease grant holder. This uncertainty iscaused by the requirements lO establish native title, which are vague and ambiguous; '(1)Traditional connection with or occupation of lands under lhe laws and customs o thegroup, (2) The existence oan idenlifiablc community or group which is entitled to NativeTitle and (3) The substan(ial maintenance oC the connection with lhe land since itsannexation by the Crown.' Therefore a plural presence in the land is nol necessary toclaim il. This situation has resulted in large tracts oC the terrain o mainland Australiacoming under or being subject lo native tille claim. with unavourable consequences forthe mining companies that sometimes have lo wait long periods until the claim is resolved.In this comext, the difficulty oC delermining thc connection oC lhe Aborigines with theland is thc application of the cuslomary law of the Aboriginal community. which is linkedwith spiritual beliefs; the rules do not bear any comparison with Western property laws. WDKcn, Na/ive TitkLand Rights inAwtralia and tite lmplicalions larResouraDt:tJeLopment (Dundee:CPMLP, 1995), pp HH3.

37 See WeUsand Doyle, n 32 aboye, at 197.

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the need to validate titles issued after the cornmencement of the RacialDiscrimination Act 1975, which might have becn rendered invalid by thatAct;

a requirement lo make provision for permitted future development ofland affected by native tille;

the need to provide a regime for the speedy and efficient determinationof issues of native titlc.

The findings o the Mabo decision can be surnmarised as follows~: the coun rejected the doctrine that Australia was ter7a nullius al the timeof settlement;

the Crown gained radical title to the land of Australia on settlement bUlthis did llot wipe out native title; ,

after scttlement, governments couId extinguish native title by legislationor by granting interests in land (such as freehold tille);

in the case of the states, the power to extinguish native title is subject tothe overriding Racial Discrimination Act 1975;

subject to this Act, no cornpensatory damages are payable for extinguishednative tille.

In 1993, !he Native Tille Act (NTA) was promulgated, as a response to !heMabo decision. It uphcld !he Mabo decision and set forth !he rights of !heAborigines in SOrnespecific cases to rule their own land undcr their traditionalform of law and custom. The NTA provides for the claimant of native tillethe right to negotiate. This right is additional to the rights of native titIeclaimants and will he used before any decision is taken, which recognisestheir titIe at common Jaw.Noting that native titIe is a 'pre-existing titIe toland', the NTA sets out processes through which native title can berecognised.39

In December 1996, !he High Courtof Australia, !hrough!he Wikdecision,'"restated the fundamental principIes of its decision on Mabo regarding theexistence and recognition of native title at COrumon law and reaffirrned thatnative title was 'oot a common law tenure but rather an interest in land thatwas capable of coexisting with other interests in land'.~1 NevertheJess, thesubstance of the interest in land was not specified, although the decision

38 SeeAustralians fol'"Native Title and Reconciliation (ANTaR) , at hup:/ /antal'".dovenetq.net.au/03_news/mabo.html.

39 F~~ a ~etailed analysis ~f the state of the native title, see in general M Tehan, A hOfMdml1usumld, an opportumty lnsl? &jlectiom on common Law, Native Tillt and Trn Years o/ tluNative Titk, al www.austlii.edu.au/au/journals/MULR/2003/19.html.

40 (1996) 187 CLR 1.

41 M Tehan, Coexistmu o/Interests in Land: A Dominant FeatuTi! o/ the Common Law, atwww.aiatsis.gov.au/rsrch/ n tru/ n tpapen/ n tip 12.pdf.

made it clear that the scope of native title derived froID the traditions andcustoms exercised by the Aboriginal communities before the EuropeansettIers arrived and that each case needed individual consideration on itsown merits.

The Wik decision was the first to establish that if there is a conflict betweenpastoral leases' rights and nativc tille rights, the former will prevail. Thenative tille rights were subordinated to those of the pastoral lease-holders.The validity oE the coexistence of different rights over the same land isspecified, defining the interest of each of the parties to prevent conflictoThe grant o a pastoral lease did not extinguish aH native title rights .Therefore, as a consequence of the Wik decision, many of the explorationand mining tenements were in dangcr of being declared invalid, becausethe government granted them on me assumption that the granting of pastoralleases had extinguished native titIe and therefore there wasno need to complywim the mechanisms established by the NTA. The grant of mining tcncmentson pastoralleases from lJanuary 1994 should have gone !hrough the rightto riegotiatc process. In response to the Wik decision, and after severaJdiscussions, the Cornmonweallh Governmcnt issued the 'IO-Point Plan',which set up ten principJes for amendment o the NTA. The Native TitleAmendment Act 1998 (NTAA) provided for !he validation of potentiallyinvalid acts that created interests in land belWeen the commencement of!he NTA (1 January 1994) and!he Wikdccision (23 December 1996)."

In. August 2002, another important decision was delivcred by theAustralian High Court known as the Ward decision.~3 This decision ruledmat: rightc;under native titJe can be individually extinguished by governmenlalactions, such as the granting of mining leases;

a series of partial extinguishments can fully extinguish native title; when the interests and rights granted by a mining lease conflict with mosederived from native titJe, the rights and interests under the mining leasewill prevail;

42 For a detailed 3tudy on this subject, see AustTaLian/orNative Titltand RLconciliation (AGi), alwww.antar.org.au.

43 {2002] HCA 28. See Goldfields Land & Sea Council's repon 00 lhe Ward case alwww.glc.com.au/pu_xx/IS%20MG-Ward.pdf.Inlheviewofsorneprac~itio.ne~.thisjudgmenl 'Ieaves continuing uncerlainty surrouoding the resolution of na~lve utl~ ISS~CS.Mining companics will continue lO negotiate individual agreements Wllh nat1v~ utleciaimants, which will take time and resourccs as me only way lO avoid me alternallve ofdrawn-oul and costly courl procccdings and subsequent appeals': 'Native tiue case onlypartially conclusive', MiningJ(YUrna~ 16 August 2002, p 111.

410 JOURNAL 01' ENERGY& NATURAL RF..SOURCES LAw Vol 23 No 4 2005INDlGENOUS COMMUNITIES' RIGHTS AND MINERAL DEVELOPMENT 411

any native title to minerals was extinguished by the mining legislationpromulgated by the state.

Through the initiative o the Cornmonwealth Minister ror Industry, Scienceand Rescarch, in 2001, the Indigenous Cornmunitics/Mining IndustryRegional Parmerships Prograrnme was initiated. Thc prograrnme was fundedthrough a budget of A$1.2 million over fout years, starting in 2001." Thisresulted [roID the recognition o a cultural change in the relations bctweenthe mining companies and the indigenous cornmunitics and the need [or along-term partnership between these stakeholders. The government providessupport [or the indigenous communities through building capacity and thcdevelopmentof cornmcrcial cnterprises. The mining companies participatingin such prograrnrnes are committed to: providing jobs for indigenous people; providing pre-employrnent training; providing skills and career development for indigenous employees; offering business opportunities to local communitics; and facilitating opportunities for investment by indigenous businesses.In response to the Mabodcdsion, since 1995, Ro Tinto has started to promotea new relationship with the Aboriginal and Torres Strait Islander People,with the aim of assisting thero to achieve 'cconomic independence throughemployrnent, business development and training'. Ro Tinto's Aboriginaland Torres Strait Islander Peoplc's Policy states16:

'In aHexploration and devclopment in Australia, Ro Tinto will considerAboriginal and Torres Strait Islander people's issues:Where there are traditional or historicaI connections to particular landand water, Ro Tinto wilI engage with Aboriginal and Torres StraitIslander stakeholders and their representatives to find mutuallyadvantageous outcomes.Outcomes beneficial to Aboriginal and Torres Strait Islander peoplewilI result from listening to thero.Economic indepcndencc through direct employrnent, businessdevelopment and training are among the advantages that Ro Tintowill offer. We will give strong support to activities that are sustainableafter Ro Tin to has left an area.

44 For a delaled analysis ofthis decision, see specialEdition; Natifl~ Titkafter Ward, 21-3AMPLA2002.

45 See Australian Department of Industry, Tourism and Resources, Pursuing Common Goals, atwww.isr.gov.au/assets/ documen ts/ itrin ternet/ overview.pdf.

46 Rio Tinto's complete document at www.isr.gov.au/assets/documents/itrinternet/Rio_Tinto20040924112924.pdf.

This policy is based on recognition and res~ect. Ro !into recognisesthat Aboriginal and Torres Islander people In AustralIa: Have been disadvantaged and dispossessed Have a spedal connection to the land and waters Have native title rights recognised by law.Ro Tinto respects Aboriginal and Torres Strait Islander people's: Cultural diversity Aspirations for sclf-sufficiency Intcrest in land management.'

Sin~e 1994, Rio Tinto has signcd more than 30 mine dcvelopment andexploration land access agreements that in many cases have taken .placeoutside the native title proccss. Worth mentioning in this context lS theYandicoogina Land Use Agreement signed in 1997 with the Gumal,aAboriginal Corporation, for the developme~t of Hamersley Iro~ sYandicoogina iron ore project in the Pilbara rcglOn of Western Austr~la .Through this project Rio Tinto has provided training an~ cducatlO.nprogramrncs for the Aboriginal cornmunity, hclpcd to bU1~dup thelrbusinesses and given them employrncnt. This new programmc mvolves thetraditional landowners in township matters, environmental work, andheritage and culture protection. In 2000, Ha~ersle~ Iron signed aMemorandum of Undcrstanding with the cornmumty of Eastern Guruma,in which the terms of negotiation for an Indigenous Land Use Agrcement(ILUA)" covering 10,000 square kilometres have been stipulated.48

47 'The main advantage of an ILUA is tllat it provides contractual certai.nty. An IL~-:-,once. tered is a binding agreement in respect of aH future acts, effecuvely permlttmg the

regs , . . . It overcomesparties to contract out of the future act and the right to ~le~Otlate proV1slOn~. ..the common law principie that the contraet is only bmdmg on .the .par.ues who Slgn It(personally or through their agent) and will bind all holders ofnauv~ ~tle m th~ area eventhough they may not be parties to it': M Hunt, 'Native Title andAbongmal Hentage IssuesMfecting Oil and Gas Exploration and Production in Australia' (2?0l) .~9JE~ 368. For adefinition, content and types o ILUAs, see National Natlvc 11l1e Tribunal, atwww.nntt.gov.au/ilua/index.hunl. The total number oflLUAs at ~ptember 2005 w~ 202.They are distributed asfollows: Queensland, 120;Wester.n Australia, 3; Northern Terntory,56; Victoria, 14; New South Wales, 4; and South Austraha, 5. ." .

48 P Cameron and E Correa, 'Towards the Contractual Management of Pubhc.ParuclpauonIssues: A Review of Corporatc Initiative', in Human Rights in NaturallU.sourceDcveWpment (DZ.llman A Lucas and G Pring, eds, Oxford: Oxford University Press, 2002). Cameron and1, RiT' dtheCorrea indicate as features o the development agreements betwecn o UHO an

Indigenous Communities the following:Long.term benefits are sought through the agreements. .

Negotiationsover company proposals are to be conducted through a 'medIator' and theprocess recorded in a Memorandum of Understanding; the principIes and procedurestOguide negotiations are describcd.

Can/inUffl ~af

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There are many other cases in Australia of successful partnershipprograrnmes between major mining companies and indigenous communitics,sueh as those of Anglo Coal Australia Pty LId, Auiron Energy Limiled, BHPIron Ore, Normandy Mining Limited, Pasminco Century Mine and WM:CResources Ltd."9 Nevertheless, despite the willingness showed bymajor miningcompanies to engage with indigcnous communities in the dcvelopment ofmineral resources, therc is still much to be done to find a mechanism thataddresses aH the conflicting interests and so avoid the sprcad of stagnationin the mining industry.

New 'kalmu1

The situation in New Zealand is different frorn that of Australia for manyreasoos, including the differenee in the size of the country and the fact thatthe Maori cornrnunity owns only five per cent of the total land arca.Furthermore, mining activities are not of great importan ce to the nationaleconomy. Moreover, New Zealand differs from Australia in that thepreservation of the Maori culture was recognised as an objeetive at the outsetof the European oecupatioo. Therefore these indigenous peoples had a sayin the political decision-making process in New Zealand. The legal instrumentthrough which Maori rights were recognised is the Treaty ofWaitangi, whichwas signcd in 1840 by a largc representative proportion of the indigenouspopulation and the British Government. This important document validatesthe transfer of the sovereignty of the Ncw Zealand territones to the BritishCrown. In the case ofNew Zealand, the colonisation scenario represented acomplete departure froID the existing models.50 Through the adoption ofthe Waitangi Trcaty, the Maoris obtained the same rights and duties ofcitizcnship as the British people.

Committee structure set up to facilitate implementation oC the agreement, with regularconsultations to take place among the parties.Specific commitments to cover social impactassessments; health facilities; compensational mine site and along pipeline corridor, detailed provisions on employment and training.

Claimants undertake to support rnining company's exploration and miniog activities,and oot to oppose the grant offuture grant oC tenements.

49 For a review of cases of partnership agreements ~tween (he mining industry and theindigenous communities, see Indigmous Partnerships PTogram _ Case Studies, at www.isr.gov.au/ con ten ti itrin ternet/ cmscon ten t.cfm ?ObjectID=5F6E940E-CB3E-4F32-82E6F79FlE07BE26.

50 See Brownlie, n 20 aboye, at 1-3 (Canada: Purich Publishing, }992). Prau highlights thatthe Treaty represented a convergence of three spccific issues:(l) lhe 'civilising purposc' that was then uscd as a justification for land sei7.ure and ,British

expansionism;

The most important paiot hefe is that the colonisation of New Zealandwas apparently lawful in relation lO the transfer of land. The 'principIe oflegality' was recognised,51 However, it seems that the real implementation ofthe principIes sel forth by the Waitangi Treaty was nol aehieved until 1975with the promulgation ofthe Waitangi Aet." This sel up aWaitangi Tribunal,which is empowered to make recommendations to the government aboutany claim submitted to it. Its work is eomplementary to that of the courts,although the tribunal's decisions are not binding. Qne very important pointis that the claims heard must be against the Crown and not against privatcowners. This would be unsatisfactory as it stands, because there are claims tolands that are now private property.

The ownership of sub-soil minerals by the Crown in New Zealand is notas exclusive as in Australia. There are private property rights to the sub-soil. Before 1913, the mineral rights on land belonged lo the owner of theprivate property. During the colonial era, the theory was that the develop-ment of natural resources would bring advantages to aH members of thecommunity.

Thcrc are two theories that explain the origin of the governmen tsimplanted over the British colonies. Qne is the theory of 'Divine Right of,Kings' and the other is that promoted by scholars, that the origin comesfrom the 'consent of the communities'. The latter, for obvious reasons, isnow the commonly accepted interpretation and the only one that stillsurvives. Accordingly, a sine qua non for British Crown sovereignty was thatthe indigenous cornmunities' consented to the ncw legal order, By that timethe clearIy prevailing bclicf was that the official acquisition of tribal consentwas a condition of the constitutionality of British Government within thecolonies. An express consent was a prerequisite to British annexation, Withinthis context, the Treaty ofWaitangi is seen as a materialisation ofthe approach

(2) me demographyofNew Zealand, with the colonised Maori significantlyoutnumberingtheir coloniscrs, as they did until around 1860;

(3) logistical practicalities determined by the distance between this outpostofEmpire andCreat Britain .

J Pratt, 'Assimilation, Equality, and Sovcreignty in New Zealand/ Aotearoa', in lndigmuusPeopLesRJghts in Australia, Canada & New aland (P Havemann, ed, Oxford: OxfordUniversity Press, 1999).

51 The Waitangi Treaty inrroduced the exclusive right of pre-emption or purchase ofland bythe Crown, as the legal insu-ument for extinguishing Maori customary title.

52 'An Act to provide for the observance and confirmation, of the principies ofthe Treaty ofWaitaogi by establishing a Tribunal to make recommendations on c1aims rclating t~ thepractical application of the Trcaty and to determine whether certain rnatters are conslstentwith the Treaty: See Brownlie, n 20 aboye, at 83.

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of the contractual theory and the foundation of British sovereignty ayer theMaori cornmunity.53

Despite the apparent Success in the treatment of the indigenous peoplesof Ncw Zealand through the signing of the Waitangi Treaty in 1840,controversics related lO the interpretation of both versions (Maori andEnglish) still exist. This is attributable to lbe large cultural gap belWeen lbeMaoris and the Europeans and the difficulty encountered in 1840 intranslating the indigenous language, especially in the ahsence of a writtenformo It is hard lo knowwhat right~, in reality, the Maori cornmunity thoughtit was transfcrring lo the colonisers. Many debates aIid scholarlyinterprctations have becn pro"duced since, oriented towards attaining aconclusive determination of the differences and common ground of bothparties.54 The Waitangi Tribunal and lbe Court of Appeal, after recognisingsomc of the principIes of the Treaty, stated that these must be interpreted ina dynamic sense.55

53 Jn the respon!>c ofLord Clcnelg to the proposal in 1837 ofthe New Zealand Association ofasystematic colonisation, he set'i out the position ofthe Crown ofobtaining the permissionof the tribes in order to establish iL'iimperium. 'It is difficult or impossible to find in thehistory of British colonizalion an example of a colony having ever been founded inderogation of such aboriginal rights, whether ofsovereignty or ofproperty, as are those oCthe chiefs and people ofNew Zealand. They are not savages living by the chase, bul tribeswho have apportioneu the country between them, having fixed abodes, with anacknowledged property in the soil, and with some rude approaches to a regular system ofinternal government It may be therefore be assumed as a basis for aH reasoning and al!conduct on this subj~ct, that Grtat Britain has no legal or moral right ro tStablish a colon, in NewZealand, without tlu fret consmt o/ tlu natives, deliberatelygiven, without ccmpulsion, and without/raud. To impart to any individuals an authority lO establish such a colony, withollt firstascertaining the consent ofthe New Zealanders. orwithout taking the most effectual securitylhat the contract which is to be made with them shall frcely and fairly be made, would, as itshould seem, be to make an unrighteous use of our superior power.' (Emphasis added.)This quotation can be found in 1H Kawharu (ed), Waitangi: Maori and Pakeha PerspectivtS o/tM Treaty o/Waitangi (1989), p 30.

54 Walker, regarding the interpretation of the Waitangi Trcaty and the establishment oC theBritish sovereignty, states that the Treaty was 'tile first step in the subversion of Maorisovereignty. The world subversion is appropriate, because none of the chiefs signed withtheir intelligent consent They wcrc gulled ioto it by deceptive translation'. What the Maorisintended to cede was the governancc oftheir lands but oot the sovereignty as it appears inthe offidal translatioo. See R J Walker, 'Maori Sovercignty, Colonial and Post-eolonialDiscourses'. in Indigrmous Peopks' Rights in Australia, Ganada &New lealand (P Havemann,ed, Oxford: Oxford University Press, 1999). For an introduction to the Treaty ofWaitangi,see J Davies, Basic !ntroduction to the Tuat, Q/ Waitangi, at www.arena.org.nz/tino %20rangatiratanga. h tm.

55 In the Atiawa Report, the Court of Appeal referred to the Tribunal observations, whichstate: 'The spirit of the Treaty transcends the sum total of its component written words andputs narrow or literal interpretations out ofplaee. The Treaty was an acknowledgement ofMaori existen ce, of their prior occupation of the land and of an intent that the Maori

The new IegisIation, the Resource Management Act and the CrownMinerals Act, which carne into force in October 1991, took into account theprovisions of the Waitangi Treaty. The Resource Managemcnt Act56slatesthe obIigations to:

'rccognise and provide for the relationship ofMaoris to their ancestralland, watcr, sites, wahi tapu and other taanga (or treasures) .... Rayeparticular regard to kaitiakitanga (guardianship of resources) aod takeioto accouot the principIes of the Waitangi Treaty. In consequcnce, toinitiate any kind of mineral resource deyelopment, the deveIoper hasto negotiate with the Iandowner, who cannot refuse access for minimurnimpact developments. In the case of land belonging to the cornmunity,th"eMaoris have the right to refuse access if it is considered sacred bythe tribe. The refusa! of access can occur during any stage ofthe mineraldeyelopmeot activity, but the Mioister can overturn the decision if hcor she considers the proposal to be in the public ioterest.'57

Canada

Iodigenous rights in Canada are protected by the Constitution, aod there isa long history of treaties between indigenous cornmunities and thegovernment. The recognition of indigeoous rights was not as latc as inAustralia, but also llot as earIy as io Ncw Zcaland, where it wasbrought aboutat the beginniog of coIonisatioo.

In 1763, lbe Royal Proclamation issued by King George 1I of Creat Britainstipulatcd that a portion ofland that remained vacant (without the presenceof settlers) io possession of the indigenous people must be reserved for them.However, it was also Slated that the indigenous peoples couId transfer theirrights to the Crown. Aftcr this, a series of treaties were signed between thecolonists and the iodigenous communities while the new settlers expandedacross the country. But what is the basis of Iegitimacy of the Crown's

presence would remain and be respected .... The Treatywas also more than an affirm~tionof existing rights. It was not intended to merely fossilize a status quo but to proVlde adirection for future growth and development The broad and general naturc of its wordsindicates that it was not intended as a finite contract but as the foundation for a developingsocial contracto We consider then that the Treaty is capable of a measure of adoption tomeet new and changing circumstances provided there is a measure of consent and anadherence to the broad principIes': P Mac Hugh, TM Mami Mana Carta: Nr:wZeaJand 1Awand tM Treaty o/Waitangi (1991), pp 4-5.

56 See in detail 'About the Resource ManagementAct' in New Zealand Ministry for Environ-mento at www.mfe.govt.nz/laws/rma.

57 For a guide on how to get involved in resource management decision-making. see NewZealand Ministry for Environment at www.mfe.govt.nz/publications/ nna/ rma-guide-jul04/htrnl/page5.htrnL

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sovereignty ayer Canadian territory? Decisions of the Supreme Court ofCanada asserted thal the Crown assumed sovereignty Qver the territory ofCanada by conquest or discovery.In 1973, an important decision was taken by lhe Supreme Court ofCanada

in lhe case of Calderv Attornry-GeneralBritish Columbia, 58 in which itwasagreedby the majority of the justices that native title existed al law and continued toexist unless it had beco validly extinguished.!i9Mter this decision, the federalgovernment began a comprehensive land claim process lOscttle aboriginaltirles ayer land thal remained in the possession of Aboriginal peopIe. Thegovernment has signed several agreerncnts with the indigenous cornmunities.Within these modern land claim settlements, the indigenous peopIe waivetheir rights to issue future land clairns in exchange for participation in thcrnanagement of the land with respect to aH the issues concerned with thisprocess, such as environrnental protcction, tax regime, compensation,ernployrncnt, and so 00_60

The Nunavut Land Agreement, signed in 1993 after 17 years ofnegotiation,isa rnodel for transfcr of title and rnanagement oflands and natural resourcesfrom indigcnous peoples to the Crown. It is an important agrccment becausethe cornpromise it contains seems to be relatively fair and equitable for bothparties. Whethcr it proves so in practicc remains to be seen. It eovers an

58 'The decision in Caltkrv Atwrney-Gtm.eral o/British Columbia washanded down by me SupremeCourt ofCanada on 31January 1973. It is often credited with having provided the impetusfor the overhauling of the land c1aimsnegotiation process in Canada. The case was initiatedin 1968 by the Nisga'a Tribal Council against lhe Government ofBritish Columbia. Thcmurt recognised the possible exislence of Aboriginal rights to land and resources (thusoverturning the Coun of Appeal's finding), butwas equally divided on the issue ofwhetherthe Nisga'a retained title. The decision nevertheless prompted the federal government todevclop new policy to address Aboriginal land daims. 1976 saw Canada commenccnegotiations with the Nisga'a Tribal Connl, however British Columbia did notjoin thenegotiations unti! 1990. The Nisga'a Final Agreemcnt was conduded in 1999 andimplemented by legislation in 2000', at www.atns.net.au/biogs/AOOI933b.htm.

59 1Isaac, Abmiginal Law: Cas~, Materials and Commmiary (1995), pp 20-35.60 The most important land daim settlements - modem day treaties _ after the Calderdedsion

are:James Bay and the Northem Quebec Agreement, in 1975; the Northeastern QuebecAgreement in 1978; the Inuvialuit Final Agreement in 1984; the Cwich'n ComprehensiveLand Claims Agreement in 1992; the Claims Agreement with the Tungavik Federation ofNunavut in 1993; the Final Agreement with the Coundl ofYilkon Indians in 1993; theSahtu Dene and MetisAgreemcnt in 1994 and the Nisga'aAgreement.in.Prindple in 1996.AlI these agrecments, which had been confirmed by federallegislation, confer rights thatare protected by me Constitution Act of 1982. The finalisation of the agreements tookyears; for instanc:.e the Nunavut Claim Agreement took 17 years to finalisc. See id, at255-266, and M Ivanitz, 'The Emperor Has No Clothes: Canadian Comprehensive Claimsand Their Relevance 10 Australia'. in P Moore, Land, Right.s, l.Aws: lssues o/ Native Titk(1997), P 8.Also see Indian and Northern Affairs Canada. at www.ainc.inac.gc.ca/pr/info/trty_e.html.

extensive area in the northwest of Canada (355,000 square ki1or~et~es,including water and marine arcas). Through th~sagreem~nt, the ~nUlttnbe'cede, release and surrender' all their rights, tItles, and mterest l~, and .tolands and waters to the Federal Crown, in exchange for flnanclalcompensation, participation in the deve~opmen.t of their lands and theestablishment of a special code for regulanng InUlt lands.

Notwithstanding this history of treaties, land clai~ s.ettlements and ~econstitutional protcction of indigenous rights, there IS sull sco~e for conf1~~t. C nada - first because not all the indigenous peoples have slgned treaUesIn a , . . h d

d secondly there are substantial tracts of land with unexungUls ean , , th F deralaboriginal title that could be the subject of claims. Furth.er~ore, e eIndian Act - the rnost important legal framework for mdlgenou~ peoples,which endorses the holding of lndian status, band counclls (lo~algovernment) and the rulesfor the rnanagementand ad~ioistration ofIn~lanreserves- does not apply to aHindigenous groups. For mstancc, the InUlt ofnorthern Canada do not have reserves and are therefore not affected by thcIndian Act. The Metis group, like the Inuits, have no reserves and al~oh~venot signed a treaty. Their native rights are therefore subject to the legIslatIonof the Province.lH

Latin America

Far-reaching mining and investrnent reforms in Latin America62 have placedsorne countries among the leaders in attracting invesunent, and have ~sostirnulated their economic growth_ Recent surveys have shown that d~nngthe last five or six years the Latin American regioo ~as received more pnvateexploration invesunent than any other region, and lt now attracts more than22 per cent of the global exploration budget. . .

When the Spaniards arrived in Latio America 50? ~ear~ago, the mdlgenouscornmunities already had a relativcIy advanced rnmmg md~stry. In f~ct, fewnew discoveries of alluvial gold were made under the Spamards du~ng thecolonial era. The difference was that for the indigenous populatIons thcresources extracted had a spiritual and religious value, not a monetar~ one.The Spanish conquerors brought to lhe 'NewWorld' lhe co~cept of mIneralwealth. At the time of the conquest in 1492, sorne 75 ffillhon people wereliving in lhose lands, mainly in lhe highlands of lhe Andes and lhe landslocated between Panama and Mexico. It is believed that more than half of

. h' d agement of minerals in Canada,61 For further details concerning natlve owners Ip an mansee BJ Barlon Canadian Law o/Mining (1993), pp 80-113. . d th

' .. Ce IAro. S thAmencaan e62 The Larin American region compnses MeXlco, ntra enca, ou

West lodies.

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lhe indigenous population perished in less lhan 50 years. By 1592, probablyno more than a quarter survived.63

In most cases, the Spanish and Portuguese conquerors adjudicated theowncrship afthe land by occupation. since there wasno legal titIe that verifiedthe entitlement of the indigenous people.64 It is suggested that in LatinAmerica indigenous peoplcs have different kinds 01' titles that support theirtraditional rights over the lands they occupy. Sorne are cornmunalland tides,which originated in colonial times. Others are based 00 the materialpossession of the land without the need for a written title. A third category isthe title obtained as compensatian for injustice and discrimination. Therehave beco different approaches related to land ownership in accordancewith the era in which they evolved.65

The colonial period was characterised by the implementation of coerciveregimes in which the indigenous cornmunities were required to work in adetermined arca to produce a taxable surplus. Mter the conquest, the Spanishcolonisers vested the property of the native lands in the Spanish Crown.Before independencc, sorne indigenous cornmunities managed to buy landsfrom the Crown. This produced the so-called indigenous cornmunity. In thecase of the inhabitants of the lowlands, they did not rcccive spedal protectionor recognition of any rights, since the terrain theywere living in was oflittleinterest to the colonisers. Thcse zones wcre consigned to the missionaries,who organised the cornmunities within reserves.

With independence, individual forms of land propcrty were prornoted.Since the indigenous cornmunities were people with little education, landownership became concentrated in a few hands. Indigenous people were

63 See Latin Amtrica History, al the Latin American AlIiance Web, 'W\W.latinsynergy.org/latinoamericahistory.h tm.

64 L Nesti, Indigen01.il ptop!e.s' right to land: InternationaJ standards and possible thveWpments. TitecuLJuralvalue o/ land and tM nk with 1Mprouction o/ the mvironmenl. The pmpective in the caseo/ Mapuclu-Pechuenclte, European Masters Degree in Human Rights and DemocratisationUniversity oC Padua-University of Deusto, 1999, at www.xs4alI.nl/-rehue/art!nestl.hunl:Ne~ti ~es:. 'The lack of a legal tit:1eand the non-recognition of their speciallink withthelr terntones has been used by Slates until OUTdays to expropriate indigenous peoplesla~ds for devel~pment projecls, military occupation. border security. division into smallpnvale properues to be sold to individuals or for tounsm projects. In other cases Slateshave recognised Indigcnous peoples' right lO land bUl never implemented il, n~r haveprotected these lands from exploitation companies or rom people interested in theirresources. Many times states have nOl made a distinction between the lands and the resourcesof the subsoil. auributing to themselves the permanent sovereignty over these latter andalIowing for exploration and exploitation projects in indigenous peoples' lands withoutconsulting them or compensating them for the 1055ofland or the damage received.'

65 R Plant an~ S Hvalkof, Land Titling and Indigm01.il Ptf>jJ[,s (Inter.American DevelopmentBank. Sustamable Development Department, Technical papers. 2001).

given small pieces ofland for their subsistence in exchange for chcap labour.This approach caused conflicts that gave way to the crcation of specialresguardos that have their own political and social organisation.

During the nventieth ccntury, many changes occurred in relation toindigenous property rights over lands. Initially, lhe collective ownership ofindigenous lands was recognised with the prohibition of sale, mortgage,division or prescription. Policies varied across Latin America. Around the1940s, there was a growing concero about the marginalisation of indigenouspeople, which 1ed to lhe development of policies of integration. During lhe1950s to 1970s, many Latin American countries enacted agrarian reforms topromote better managerncnt ofthe lands. In sorne cases, indigenous peoplesreceived lands that were not suited to agriculture, leading to poverty. In thelowlands, colonisation increased through farrning and larger commercialcnterprises, which produced a need to regularise the lands. Brazilpromulgated the Indian Statutc in 1973, in which thc dcrnarcation ofindigenous lands was stipulated, with a period of fiveyears to carry out thistask. During this period, the titling of the Amazonian lands was initiated.Peru recognised the inalienable collective ownership of the AmazonianIndians over their lands in 1974 through its Native Communities Act. InColombia, titling startcd in the 1980s and, in Ecuador and Bolivia, in the1990s.

Qne issuc that has affected the regularisation of lands is the concept ofproperty with a social function that irnposes limitations on thc type ofdevelopment undertakcn. Within this context states are empowered to decidewhich econornic activity is the one that will have precedence in the use ofland. The use is left to market forces. Plant and Hvalkofindicate the followi.ngapproaches in indigenous land tenure: The protective approach, which is based on the indigenous right to beprotected against extraneous impacts and market forces - within thisapproach, the majority of Latin American legislation stipulates thatindigenous lands are inalienable, imprescriptible and not subject tmortgage.

The rights-based approach, which recognises the indigenous ownershipover the land and its resources within a multicultural state - this approachis in line with the recognition of the traditional ownership of the landsbefore thc conquest, the native title to land. It is comparable to theAustralian approach, in which, as a part of the reconciliation for pastinjustices, indigenous rights to the lands are recognised and affirmed.

The environmentally or ecologically determined approach, which statesthe special capacity of indigenous cornmunities to Uveand develop landslocated in ecologically sensitive areas - this approach cmphasiscs the fact

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that rom time immemorial indigenous cornmunities have becn living inecologically sensitive areas without causing advcrse impacts. Indigcnouspeoples generally use the Iand with the intention o prcscrving it for futuregenerations. Perhaps they have a better idea oC sustainable developmentthan Westcrn societies.

The recent trend in Latin America is for the recognition and affirmation ofindigenous rights. It has becn pointed out that 'a new Latin AmericanConstitutionalism firrnly recognises an increasing number ofLatin Americanrepublics asmultiethnic and multicultural societies and often provides specialprotection for indigenous lands and resources,.66 During the last decade,Argentina, Bolivia, Brazil, Colombia, Ecuador, Guatemala, Mexico,Nicaragua, Panarna, Paraguay and Peru have recogoised the right