PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation The Expert Mechanism on the Rights of Indigenous Peoples has also noted that collective rights are “at the heart of international and regional jurisprudence”, citing the case law of both the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights.1090 In 2020, the Expert Mechanism on the Rights of Indigenous Peoples carried out a comprehensive study on the right to land. It stated that: 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.1091 The United Nations Declaration on the Rights of Indigenous Peoples deals extensively with the rights of indigenous peoples with respect to land. Article 25 provides that indigenous people have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands and resources. Article 26 (1) provides that indigenous peoples have the right to the lands, territories and resources that they have traditionally owned, occupied, used or acquired; article 26 (2) provides that indigenous peoples have the right to own, develop, control and use their traditional lands, territories and resources; while article 26 (3) provides that States shall give legal recognition and protection to indigenous peoples’ lands, territories and resources while respecting their customs, traditions and land tenure systems. Article 27 requires States to establish a “fair, independent impartial, open and transparent process”, in cooperation with indigenous peoples, to recognize and adjudicate indigenous peoples’ rights to their lands, territories and resources. Indigenous peoples’ rights to land are also grounded in articles 46 (which provides that the Declaration shall not be interpreted as implying, authorizing or encouraging any action that would “dismember or impair” the territorial integrity of States and that the rights set forth in the Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations) and 22 (requiring particular attention to be paid to the rights of indigenous elders, women, youth, children and persons with disabilities). These rights have been repeatedly recognized in decisions in individual cases by the treaty bodies,1092 as well as within the African and Inter-American human rights systems.1093 In addition, they are the subject of extensive jurisprudential recognition by national courts.1094 At the regional level, the African Court on Human and Peoples’ Rights, in its 2017 landmark judgment concerning the rights of the Ogiek peoples in Kenya, held that the Ogiek were an indigenous people and, according to the Constitution of Kenya, as such should be afforded special protection.1095 The Court noted that their “request for recognition as a tribe goes back to the colonial period, where their request was rejected by the then Kenya Land Commission in 1933”.1096 According to domestic law, in Kenya only peoples who had tribal status were given land as “special reserves” or “communal reserves”. The Court accordingly held that, if other groups that are in the same category of communities as the Ogiek – which lead a traditional way of life, with cultural distinctiveness highly dependent on the natural environment – were granted recognition of 162 1090 Ibid., para. 7. 1091 Ibid., para. 5. 1092 See, for example, Human Rights Committee, Anton v. Algeria (CCPR/C/88/D/1424/2005). 1093 See, for example, 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, communication No. 276/2003, Decision, 11–25 November 2009; Inter-American Court of Human Rights, Kaliña and Lokono Peoples v. Suriname, Judgment, 25 November 2015; Inter-American Court of Human Rights, Yakye Axa Indigenous Community v. Paraguay, Judgment, 17 June 2005; Inter-American Court of Human Rights, Sawhoyamaxa Indigenous Community v. Paraguay, Judgment, 29 March 2006; and Inter-American Commission on Human Rights, Indigenous and Tribal Peoples’ Rights over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System (OEA/Ser.L/V/II, Doc. 56/09) (2009). 1094 See, for example, High Court of Australia, Northern Territory v. Mr. A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples, Judgment, 19 June 2019; High Court of Guyana, Thomas and Arau Village Council v. Attorney General of Guyana and another, Judgment, 30 April 2009; and Supreme Court of the United States, Carcieri v. Salazar, 555 U.S. 379 (2009). 1095 African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v. Republic of Kenya, Application No. 006/2012, Judgment, 26 May 2017. 1096 Ibid., para. 141.