consent, whose contours may have to be further elaborated upon by the ACHPR in future litigation. It has also wisely taken the opportunity offered by the case to return to the crucial issue of the identification of indigenous peoples in the African context.387 In particular, the ACHPR has affirmed that the rights, interests and benefits of indigenous communities in their traditional lands constitute ‘property’ under Article 14 AfrCH and that special measures may have to be taken to secure such ‘property rights’.388 The state therefore has the duty ‘to recognise the right to property of members of the Endorois community, within the framework of a communal property system, and establish the mechanisms necessary to give domestic legal effect to such right recognised in the Charter and international law’.389 In this regard, the ACHPR has found that the ‘trust system’ – still dominant in many African countries – is inadequate to protect indigenous peoples’ rights and states must recognize indigenous peoples’ ownership rights over their traditional lands.390 From its reasoning, the ACHPR draws the following conclusions that are of paramount importance for the protection of indigenous peoples’ rights throughout the African continent: ‘(1) traditional possession of land by indigenous people has the equivalent effect as that of a stategranted full property title; (2) traditional possession entitles indigenous people to demand official recognition and registration of property title; (3) the members of indigenous peoples who have unwillingly left their traditional lands, or lost possession thereof, maintain property rights thereto, even though they lack legal title, unless the lands have been lawfully transferred to third parties in good faith; and (4) 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.’ 391 The ACHPR has also emphasized that while ‘encroachment’ according to Article 14 of the AfrCH can take place when it responds to a public need/general interest and is carried out in accordance with the law, the ‘public interest’ test must meet a much higher threshold in the case of encroachment on indigenous peoples’ lands since rights over these lands are closely related with their right to exist as a people, the right to life of their members and the right to self-determination, among others. Limitations on land rights should also respect the principle of proportionality. As regards the criterion of ‘accordance with the law’, the ACHPR has pointed out that this would cover, in particular, the requirements of effective participation of the indigenous peoples concerned and the payment of compensation. On the whole, the ACHPR has addressed the issue of participation in respect of activities affecting indigenous peoples’ traditional lands under different Articles (14, 21 and 22) of the AfrCH, thereby making various observations which would benefit from further systematization and clarification. In particular, under Article 14 AfrCH, the ACHPR has found that ‘[i]n terms of consultation, the threshold is especially stringent in favour of indigenous peoples, as it also requires that consent be accorded’, but it has then referred to the obligation to ‘seek consent’ when it has affirmed that ‘[f]ailure to observe the obligations to consult and to seek consent – or to compensate – ultimately results in a violation of the right to property’.392 With respect to the right to natural resources enshrined in Article 21 AfrCH, the ACHPR has reaffirmed that the right to natural resources contained within indigenous peoples’ traditional lands are vested in indigenous peoples and has reached the conclusion that, pursuant to such provision, ‘indigenous peoples have the right to freely dispose of their wealth and natural resources in consultation with the State’.393 The issue of effective participation is further raised in the context of the right to development provided for in Article 22 AfrCH. According to the ACHPR’s interpretation of this provision, indigenous peoples must be given the opportunity to shape the development process in a manner that empowers them and improves their capabilities and choices. In this regard, the ACHPR has also underscored that the state has a duty not only to consult with indigenous communities, but also to obtain their free, prior, and informed consent, according to their customs and traditions in relation to any development or investment projects that would have a major impact ‘within their territory’.394 Furthermore, the ACHPR has stressed the crucial role of land in sustaining the community’s livelihood and way of life, recognizing that forced eviction from their ancestral lands violated the Endorois community’s right to culture and religious freedom. The ECtHR and minorities’ property rights In recent years the ECtHR has decided a number of cases concerning breaches of the right to the peaceful enjoyment of one’s possessions, as established by Article 1 of Protocol No. 1, in conjunction with the right to respect MINORITY GROUPS AND LITIGATION: A REVIEW OF DEVELOPMENTS IN INTERNATIONAL AND REGIONAL JURISPRUDENCE 39