A/HRC/45/38 8. Across all regions, ownership of indigenous land remains mostly in the hands of the State. Some States, such as Kenya, Morocco and the United States of America, hold land in trust for the benefit of existing and future generations of indigenous peoples. However, the supervision exercised by the Ministry of the Interior of Morocco over the collective lands of the Amazigh is highly contested by Amazigh tribes and demonstrations involving tens of thousands of people take place regularly.15 The trust land system in Kenya has proved inadequate to protect the rights of the Endorois, according to the African Commission on Human and Peoples’ Rights.16 In the United States of America, many Native American tribes may have long-standing treaty-guaranteed reservations held in trust for them by the Secretary of the Interior. Additionally, they may apply to the federal Government to take land into trust pursuant to the Indian Reorganization Act of 1965. While, importantly, this process restores a mix of federal and tribal jurisdiction for environmental, tax, and public safety purposes, it has recently been limited by the Supreme Court.17 9. Indigenous peoples often have usufruct rights and are considered beneficiaries 18 rather than owners of land. Many indigenous peoples, such as the Sami in Finland, Norway and Sweden, find this unsatisfactory. 19 While the Government of Finland has indicated that several pieces of legislation contribute to guaranteeing the right of the Sami to use Stateowned land for hunting, reindeer herding and fishing, 20 the Sami Parliament has stated that there are still no legislative provisions “enshrining the right of the Sami to land, water and natural resources”.21 In Norway, following the decision of the Supreme Court in Stjernøy Reindeer Grazing District v. Finnmarkseiendommen, it appears that it will be difficult to establish the continuity, intensity and sufficient exclusivity of use necessary to establish ownership, as opposed to usufruct, rights to land. This contrasts with the situation in Canada, where the Supreme Court decided, in Tsilhqot’in Nation v. British Columbia, that it was not necessary to demonstrate continuous intensive occupation and use for ownership rights to be granted. In Brazil, indigenous peoples’ exclusive usufruct rights over their lands and natural resources, currently guaranteed by the Constitution, are reportedly under threat due to draft law No. 191/20 on the exploration of natural resources on indigenous lands. 22 10. Securing access to land remains a priority for nomadic tribes today, given their mobility.23 In its Policy Framework for Pastoralism in Africa, the African Union recognizes mobility as a fundamental right of pastoralists (as does the 2010 pastoral code of the Niger), as well as the need to grant pastoralists – the large majority of indigenous peoples in Africa – communal land ownership on a priority basis. In contrast, for other indigenous peoples, such as the Badjos (nomads of the sea), forced localization on land could have an impact on their survival as a people.24 Other indigenous peoples, such as the Karen peoples in Thailand, and the Batwa in the Democratic Republic of the Congo, have been evicted from their lands, placing them in a particularly precarious position. 25 B. Land rights and other rights 11. The protection of lands, territories and natural resources is necessary to guarantee other rights of indigenous peoples, including the rights to life, culture, dignity, health, water and food. The right to land also implies that indigenous peoples have a right to adequate 15 16 17 18 19 20 21 22 23 24 25 4 Submission by several organizations from Morocco. Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya. In Carcieri v. Salazar: 555 US 379 (2009). See, for example, the Sabah Land Ordinance of 1939 (Malaysia). A/HRC/33/42/Add.3. See also CERD/C/SWE/CO/22-23. Submission by Finland. Submission by the Sami Parliament. See http://apib.info/2020/02/12/statement-in-condemnation-of-draft-law-no-19120-on-theexploration-of-natural-resources-on-indigenous-lands/?lang=en and submission by Brazil. A/HRC/EMRIP/2019/2/Rev.1. Submission by F.R. Zacot. See www.forestpeoples.org/sites/default/files/documents/KKNCE_Thailand_FINAL-v2.pdf and https://minorityrights.org/2019/07/02/drc-admissibility-decision-african-commission-on-human-andpeoples-rights-on-eviction-of-indigenous-people-from-ancestral-lands-represents-beacon-of-h/.