A/HRC/45/38 lands, territories, or resources, is practically meaningless if the property is not physically delimited and established”.53 In the Kaliña and Lokono Peoples case, the Court ordered Suriname to delimit and demarcate those peoples’ traditional territory, to grant them collective title and to ensure for them the effective use and enjoyment of the territory. Similarly, the African Commission on Human and Peoples’ Rights has called for both “official recognition” of indigenous land rights and “registration of property title”. 54 27. Respect for indigenous peoples’ land systems should include respect for indigenous peoples’ customs and traditions in regulating the land. As the Special Rapporteur on the rights of indigenous peoples has noted, even if indigenous courts and informal customary mechanisms exist, they are frequently not recognized by State legal systems. 55 In Vanuatu, constitutional reforms have shifted jurisdiction over lands from the mainstream court system to the nakamals (customary institutions).56 In Kenya, the National Land Commission encourages the application of traditional dispute resolution mechanisms in land conflicts.57 In the United States of America, tribes can exercise some element of control and application of their laws on their land, but that control is often limited: the Cherokee Nation, for example, holds certain lands in “restricted fee title”, meaning that the family or individual still needs the permission of the federal Government to transfer those lands, yet there is no protection against adverse possession. In 2013, in the Bolivarian Republic of Venezuela, the Huottoja people established a special indigenous jurisdiction not only for the control and management of the territory but also for the administration of justice.58 In New Zealand, a new bill before Parliament proposes the establishment of a dispute resolution process based on Maori practices to assist owners of Maori land to resolve disagreements and conflicts about their land.59 C. Article 27 28. Under this article, States should establish and implement a process, in cooperation with indigenous peoples, that gives legal recognition and protection to indigenous peoples’ rights to their lands, territories and resources, whether traditionally owned, occupied or used in the past but now out of their possession or currently in their possession. This is part of the more general requirement for remedies contained in article 28 (see below). The agreement to include in the Declaration the obligation to establish procedures to recognize and adjudicate land rights was a compromise for not including a specific right to lands, territories and resources lost in the past. 60 29. As set out in article 27, the process to provide legal protection must be fair, independent, impartial, open and transparent and respect indigenous peoples’ laws, customs and ways of using land. The article does not indicate whether States should establish a specific process to resolve disputes over indigenous land rights. However, where States rely on other mechanisms, such as the courts, legitimate questions will arise about the degree to which those mechanisms are accessible to indigenous peoples, their capacity to have due regard for indigenous laws and traditions and the likelihood of achieving a timely resolution.61 53 54 55 56 57 58 59 60 61 Case of the Yakye Axa Indigenous Community v. Paraguay, para. 143. Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, para. 209. See A/HRC/42/37. Siobhan McDonnell, “Building a pathway for successful land reform in Solomon Islands” (Canberra, Australian National University, 2015), pp. 34–35. Albert Kwokwo Barume, Land Rights of Indigenous Peoples in Africa (Copenhagen, International Work Group for Indigenous Affairs, 2014). See https://porlatierra.org/docs/c5650a3f50d60f9e7ca9f0aab1e9dce3.pdf. Submission by New Zealand. Claire Charters, “Indigenous peoples’ rights to lands, territories, and resources in the UNDRIP”, p. 143. Inter-American Commission on Human Rights, report No. 105/09 on the admissibility of petition 592-07 concerning the Hul’qumi’num Treaty Group, Canada (30 October 2009), para. 39. 9