Strengthening the Legal Framework for the Recognition of Indigenous People’s Right to Land

By Lelethu Mgedezi with additional research by Teddy Weinstein

In South Africa, land remains a contentious and vigorously contested resource from racial, gender and class perspectives. This stems from the painful history of the country. The allocation of arable, habitable and economic land was done on a racial basis, with the white minority receiving the majority of the land from which they acquired massive financial benefit. The rest of South Africa’s races were dispossessed and economically prejudiced as a result of this unequal allocation. 

Our democratic dispensation is laden with legislation that prioritises equality and the equal distribution of resources as a means to addressing past injustices. The Constitution of South Africa contains section 25, which is particularly pertinent as it is centred on property rights for all citizens. Unfortunately, there have been minimal material changes in land ownership. The white minority continues to own, access and control the majority of land for economic benefit. In as much as there is consensus over the economic prejudice caused by the distribution of land on racial, gender and class lines, it is equally important to consider the impact of dispossession under the lenses of culture, heritage and identity. This is particularly so for land dispossession of indigenous people. There are a number of different tribes or groups of the first nation people in Southern Africa including, amongst others, the Nama, the Khwe, the !Xun, Khoekhoe, Korana, and the Griqua. Land for most indigenous or first nation people carries far more value than merely habitation and agrarian status. The advent of colonialism gradually dispossessed them of land and left them to scatter and settle in various regions of the country.

For indigenous people, land carries more significance than habitat. They practice their spiritual rituals to acknowledge and celebrate culture and ancestry; they lay to rest loved ones; they plant crops and graze livestock. All of these practices are inherently linked to their identity. The consequence of dispossession is that first nation groups have been deprived of the opportunity to meaningfully practice their culture and preserve their heritage. Instead, greater urbanized land occupation has led to the annihilation or distortion of their heritage. 

Under the democratic governance underpinned by the Constitution, there exists no trite law or legislation giving formal recognition to the socio-economic rights of indigenous people in South Africa – particularly on land rights. The contentious section 25, subsection (7) permits land restitution to people or communities who suffered dispossession that occurred after the year 1913. Consequently, many indigenous groups fall outside the ambit of this provision as colonial dispossession took place before 1913. There has been some jurisprudential development in case law concerning the rights of indigenous people. The case of Alexkor Limited and Another v The Richtersveld and Another concerned the indigenous community of the Nama people, resident in the Northern Cape, who made a claim of restitution on land that Alexkor, a mining company, had occupied for mining purposes. The community was represented by the Legal Resources Centre. The Constitutional Court found in the community’s favour, stating that the community’s right to land was determined under indigenous law. The community held ownership of the land, and had not in fact been extinguished prior to 19 June 1913 by the colonial government. However, the court still relied on the fact that the land was transferred by the state to Alexkor after 1913 in its judgement granting restitution. Thus the application of this judgement is limited and, to date, there have been no equally impactful judgments concerning the rights of indigenous people.

In international jurisdictions like Canada and Australia, strides have been made to recognize the rights of indigenous people. Canada has expansively defined the scope of the land rights for indigenous people. For colonial redress, the Canadian constitution expressly enshrines the right to land for indigenous people. 

In Canada, section 35 of the Constitution Act, 1982 formally entrenches Aboriginal and treaty rights in the supreme law of Canada. They can no longer be extinguished through legislation or surrendered without the consent of Aboriginal Peoples holding interests in the land. However, the scope is limited, and Aboriginal rights extinguished by surrender or legislation prior to 1982 remain lost, similar to how rights extinguished prior to 1913 in South Africa do not require redress. 

In Australia, UNDRIP was adopted in 2009. A major roadblock to progress is that unlike in Canada, Aboriginal and Torres Straight Islanders still are not formally recognized in the Australian constitution. Fortunately, there has been some encouraging progress in grassroots political organizing among indigenous groups. The Uluru Statement From the Heart was made from the 2017 National Constitutional Convention and calls for the Sovereignty of Australia’s indigenous people, stating “We seek constitutional reforms to empower our people and take a rightful place in our own country” [emphasis in original]. From this also came The Victorian Treaty Advancement Commission is an independent office launched in January 2018, created to set up the first Peoples’ Assembly of Victoria and further the process of creating binding treaties with the Australian government. 

In this context, the United Nations Declaration on the Rights of Indigenous People, adopted by South Africa, is comprehensive in defining the rights and freedoms of indigenous people. It is instrumental in defining and protecting identity in relation to, culture, political orientation, history and heritage of the indigenous people. Not only is does it prohibit forced removals of indigenous people from habitable land in Article 10, in Article 26, and although with limitation, it prescribes their “right to lands,…which they have traditionally owned, occupied or otherwise used or occupied”. This is a pertinent provision to prescribe and protect the right to land for indigenous people and gives greater meaning to protecting human rights of indigenous people. It remains a responsibility of member states and domestic jurisdictions to give formal recognition and protection of indigenous people’s rights to land in domestic legislation.

It is evident that much still needs to be done to give recognition domestically, from a legislative perspective, to indigenous people’s rights so they are afforded equal protection under the law. Importing international sources of law to define and interpret the rights of indigenous people will be useful in developing domestic jurisprudence concerning the rights of indigenous people. Drawing lessons and experiences from different foreign jurisdictions can create a well embodied system of such rights. Finally, the courts have a significant role to play in interpreting the rights of indigenous people and should be used accordingly.