A/HRC/45/38 II. Significance of land rights for indigenous peoples and link between land rights and other rights A. Significance of land rights for indigenous peoples 1. Land is not a commodity 5. For indigenous peoples, land is not only, or even primarily, an economic asset. It is the defining element of their identity and culture and their relationship to their ancestors and future generations. Access to lands, territories and resources is obtained through community membership, not the free market. For indigenous peoples, land rights are often intergenerational and thus carry an obligation of stewardship for the benefit of present and future members and as the basis for their continued existence as a people. 8 Under Amazigh law, for example, land is considered not only a source of production, but also a form of shelter, a place of security and a source of a sense of belonging and identity. 9 2. Respect for customs, traditions and land tenure systems 6. Indigenous peoples have their own customs, traditions and land tenure systems, which should be respected. The institution of individual, as opposed to collective, land rights and the vesting of power over lands customarily owned by indigenous peoples in the State undermine these systems. When customary law is not incorporated into titling procedures, the land rights of indigenous peoples are not fully protected. In Paraguay, although a land title has been granted to indigenous peoples, this was not done on the basis of historical use or tradition, but on a calculation of how much land would be required to maintain the communities’ economic and cultural viability. 10 Even in States where the majority of land is held under customary tenure, restrictions on land title transfers to corporations or individuals are circumvented, as reported in Papua New Guinea, Samoa,11 the Solomon Islands and Vanuatu, among others. 3. Collective rights 7. Indigenous peoples have the right to enjoy, as a collective and as individuals, all of the human rights and fundamental freedoms guaranteed in international human rights instruments, equally with all other peoples and individuals. Respect for indigenous peoples’ self-determination and their customary land tenure systems necessitates recognition of their collective ownership of lands, territories and resources. Recognition of both individual and collective land rights is critical in States such as the United States of America, where indigenous lands are held collectively, as is the case for tribal reservations, and individually, as is the case for allotments, and indigenous peoples struggle to retain both types of land tenure. Collective rights, in particular, are at the heart of international and regional jurisprudence, as expressed by the Inter-American Court of Human Rights in the Kaliña and Lokono Peoples case and by the African Commission on Human and Peoples’ Rights in the Endorois case. 12 The Congo is the only State in Africa to date to have enacted legislation that categorically recognizes indigenous peoples, including their collective land tenure system. 13 Greenland, a self-governing territory within Denmark, follows its Inuit tradition by having no private ownership of land: land is a communal good that can never be bought or sold.14 8 9 10 11 12 13 14 E/CN/.4/1995/WG.15/4. Submission by several organizations from Morocco. A/HRC/30/41/Add.1. A/HRC/WG.6/25/PNG/3. See also www.culturalsurvival.org/sites/default/ files/media/uprsamoafinal.pdf. Inter-American Court of Human Rights, Case of the Kaliña and Lokono Peoples v. Suriname, judgment, 25 November 2015; and African Commission on Human and Peoples’ Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, decision No. 276/2003, 4 February 2010. The Congo, Law No. 5-2011, arts. 31–32. See also the submission by Soyata. Submission by Greenland and Denmark. 3