A/HRC/45/38 B. Article 26 1. Article 26 (1) 19. This provision enshrines a general right that applies to lands, territories and resources that indigenous peoples have traditionally owned or traditionally occupied or used. However, it also applies to lands, territories and resources that indigenous peoples have “otherwise used or acquired”. Thus, the land rights of indigenous peoples are not limited to those territories for which there is an unbroken history of use or occupation but includes lands that indigenous peoples have come to occupy, for example as a consequence of past relocations, whether voluntary or involuntary. It could include lands gained after relocation, settlement of a modern treaty or by purchase. 20. Under article 26 (1), indigenous peoples do not need to demonstrate possession in order to have rights to lands, territories and resources, and to restitution or compensation for loss of them. In the Endorois case, the African Commission on Human and Peoples’ Rights stated, inter alia, that: The members of indigenous peoples who have unwillingly lost possession of their lands, when those lands have been lawfully transferred to innocent third parties, are entitled to restitution thereof or to obtain other lands of equal extension and quality. Consequently, possession is not a requisite condition for the existence of indigenous land restitution rights.42 The African Court on Human and Peoples’ Rights and the African Commission specifically drew inspiration from the Declaration, even though Kenya has not yet expressed support for it. 21. Indigenous peoples have the right to own and use resources just as they have the right to own their lands and territories. In Case of the Saramaka People v. Suriname, the Inter-American Court of Human Rights held that indigenous peoples had rights to their natural resources related to their culture and found on their lands and territories and that “without them the very physical and cultural survival of such peoples is at stake”. As expressed by the Special Rapporteur on the rights of indigenous peoples, if indigenous peoples retain ownership of all the resources, including mineral and other subsurface resources, within their lands, they also have the right to extract and develop them. 43 Moreover, if the State claims ownership of subsurface or other resources under domestic law, indigenous peoples have the right to pursue their own initiatives for extraction and development within their territories, at least under the terms generally permitted by the State for others.44 In one arrangement, the Alaska Native Claims Settlement Act of 1971 created indigenous “corporations”, granting to 220 village corporations title to the surface estate, and granting to 13 regional corporations title to the minerals – the subsurface estate – for development.45 22. Prior to adoption of the Declaration, some domestic courts had already recognized the rights of indigenous peoples over traditionally owned or occupied land not in their possession. In 2003, the Constitutional Court of South Africa recognized that indigenous peoples maintained ownership of the traditional lands they had occupied prior to colonization despite changes in the legal regime. As evidence, the Court considered precolonial customary law. In 2002, in Kerajaan Negeri Selangor and others v. Sagong Tasi and others, the High Court of Selangor, a state-level court in Malaysia, recognized the existence of the land title held “based on the Orang Asli’s exclusive and continual occupation of their ancestral land since time immemorial”.46 42 43 44 45 46 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, para. 209. A/HRC/24/41, para. 9. Ibid. 43 U.S. Code 1601–1627. Derek Inman, “From the global to the local: the development of indigenous peoples’ land rights internationally and in Southeast Asia”, Asian Journal of International Law, vol. 6, No. 1 (2016), pp. 46–88. 7