A/HRC/45/38 Declaration. They are often expressed in indigenous peoples’ own laws, customs and traditions, as in the Yurok Tribe Constitution. 37 Additionally, indigenous peoples’ land rights existed in domestic frameworks, such as in the Constitution of Mexico, and in the regional human rights instruments, and have been interpreted into the United Nations human rights treaties, long before the adoption of the Declaration. All the rights in the Declaration are indivisible, interdependent and grounded in the overarching right to selfdetermination. The articles on land rights were the most important articles for indigenous peoples during the negotiation of the Declaration and remain a work in progress. 38 A. Article 25 15. This article highlights the importance of indigenous peoples’ spiritual attachment to their lands and their right to pursue practices and traditions associated with that spiritual relationship. It recognizes their responsibility to ensure that future generations too can maintain such a relationship. As expressed by the Inter-American Court of Human Rights in Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, “for indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations”. 16. The phrase “spiritual relationship” must be interpreted broadly. For indigenous peoples, the spiritual relationship to the land is an inseparable part of every activity on the land. It pertains not only to spiritual ceremonies but also to a wide range of other activities such as hunting, fishing, herding and gathering plants, medicines and foods that have a spiritual dimension and are inextricably part of the spiritual relationship to the land. 17. Indigenous peoples have the right to “maintain” and “strengthen” their relationship with lands, territories and resources no longer in their possession but which they owned and used in the past. Maintaining and strengthening indigenous peoples’ spiritual relationship to the land may require ensuring access to the land, protecting or restoring specific features or ecologies important to indigenous customs or traditions, and preventing uses and activities that would be detrimental to those ends. The African Commission on Human and Peoples’ Rights has found that “without access to their traditional land, the Endorois are unable to fully exercise their cultural and religious rights, and feel disconnected from their land and ancestors”.39 Indigenous elders, women, youth, children and persons with disabilities may have different spiritual relationships with and sacred responsibilities to the land that, in line with article 22 of the Declaration, warrant particular attention. 18. Indigenous peoples have the right to their “traditionally owned or otherwise occupied and used” lands, territories and resources. This encompasses a range of land tenure relationships reflective of the diversity of indigenous societies worldwide, including exclusive tenure, shared or co-managed harvesting and grazing rights, and rights pertaining to seasonal or irregular occupation of land. It also includes the traditional or customary law of indigenous peoples themselves and reflects the ILO Indigenous and Tribal Peoples Convention.40 Indigenous peoples’ right to maintain and strengthen their spiritual relationship extends to all resources, including waters and coastal seas. The High Court of Australia has recognized rights over the sea, including the right to fish, hunt and gather resources for personal, domestic and communal use and has recognized that land in the intertidal zone in the Northern Territory could be claimed and recognized as Aboriginal land.41 37 38 39 40 41 6 See https://yurok.tribal.codes/Constitution/Preamble. Claire Charters, “Indigenous peoples’ rights to lands, territories, and resources in the UNDRIP”, p. 402. Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya. Article 8 of the Convention requires that “due regard” be had for the “customs or customary laws” of indigenous peoples and article 17 states that their land tenure systems “shall be respected”. Northern Territory v. Arnhem Land Aboriginal Land Trust, 30 July 2008, and Commonwealth v. Yarmirr, 11 October 2001.