1 Comm 276/2003.

2 Gilbert, J Indigenous Peoples’ Land Rights Under International Law: From Victims to Actors (2007, Martinus Nijhoff Publishers) at 4–5 CrossRefGoogle Scholar.

3 Bojosi, KN and Wachira, GM “Protecting indigenous peoples in Africa: An analysis of the approach of the African Commission on Human and Peoples’ Rights” (2006) 6 African Human Rights Law Journal 382 at 385Google Scholar; Gilbert, id at 8–9.

4 Thornberry, P Indigenous Peoples and Human Rights (2002, Manchester University Press) at 64 CrossRefGoogle Scholar.

5 For instance, Vattel, a scholar in this era, argued inter alia that non-agrarian hunter gatherer societies could not populate whole countries, their “unsettled habitation” in immense regions did not amount to legal possession and therefore it was lawful for Europeans to settle in the lands of Indians and colonise them. See Scott, JB The Classics of International Law: The Laws of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns by De Vattel, E (transl Fenwick, CG, 1916, Carnegie Institute of Washington) book 1 at 84 Google Scholar, para 203, 85, para 209 and 37–38, para 81.

6 Gilbert Indigenous Peoples’ Land Rights, above at note 2 at 17–19.

7 Id at 21.

8 Originally, the term terra nullius was ascribed to territories that were not under any sovereignty, either because they had never been under the authority of any state or had been abandoned by a state that had sovereignty over them. However, in this era the concept was deployed for political purposes to describe territories with no form of “civilised” European model of government. See Lindley, MF The Acquisition and Government of Backward Territory in International Law: Being a Treatise on the Law and Practice Relating to Colonial Expansion (1929, Negro Universities Press) at 10 Google Scholar; Gilbert, ibid.

9 Gilbert, id at 4–5.

10 According to Shawt, “the doctrine basically posits that new States will come to independence with the same boundaries they had when they were administrative units within the territories of a colonial power”: Shawt, MN “The heritage of states: The principle of uti possidetis juris today” (1996) 67 British Yearbook of International Law 75 at 97CrossRefGoogle Scholar. The impact of the doctrine was to convert the administrative boundaries that delimited the different colonies “into international frontiers in the full sense of the term”: Case Concerning the Frontier Dispute (Burkina Faso / Mali) International Court of Justice judgment of 22 December 1986, para 23.

11 Reisman, M “Protecting indigenous rights in international adjudication” (1995) 89 American Journal of International Law 350 at 352CrossRefGoogle Scholar. Gilbert Indigenous Peoples’ Land Rights, above at note 2 at 36.

12 Gilbert, ibid.

13 “Study of the problem of discrimination against indigenous populations” (final report (supplementary part) submitted by Special Rapporteur José R Martínez Cobo, May 1982), UN doc E/CN.4/Sub.2/1982/Add.1, para 34, available at:  <http://www.un.org/esa/socdev/unpfii/documents/MCS_ii_en.pdf> (last accessed 26 June 2017).

14 Id, para 64.

15 Id, para 65.

16 ILO Convention on Indigenous and Tribal Peoples, 1989, (No 169): A Manual (2003, ILO) at 4.

17 Ibid.

18 ILO 107, art 2(1).

19 Anaya, J Indigenous Peoples in International Law (2004, Oxford University Press) at 56 Google Scholar.

20 JR Martínez Cobo “Study of the problem of discrimination against indigenous populations”, UN doc E/CN.4/Sub.2/476/Add.5.

21 Report of the International NGO Conference on Discrimination Against Indigenous Populations in the Americas 1977 (Sub-Committee in Racism, Racial Discrimination, Apartheid and Decolonization, 20–23 September 1997, Palais des Nations, Geneva) at 7.

22 Ibid.

23 Niezen, R Origins of Indigenism: Human Rights and the Politics of Identity (2002, University of California Press) at 45 Google Scholar.

24 Ibid.

25 Established by res 1982/34.

26 Nietzen Origins of Indigenism, above at note 23 at 46.

27 Swepston, L “A new step in the international law on indigenous and tribal peoples: ILO Convention No 169 of 1989” (1990) 15 Oklahoma City University Law Review 677 at 682Google Scholar.

28 Swepston, L “The ILO Indigenous and Tribal Peoples Convention (No 169): Eight years after adoption” in Cohen, C (ed) Human Rights of Indigenous Peoples (1998, Trans National Publishers) 23 at 23–24 Google Scholar.

29 J Burger “Indigenous peoples and the United Nations” in Cohen (ed), id, 6.

30 143 states voted in favour of passing UNDRIP. Although no African state voted against passing the declaration, Nigeria, Burundi and Kenya abstained. See Barume, AK “Responding to the concerns of African states” in Charters, C and Stavenhagen, R (eds) Making the Declaration Work: The United Nations Declaration on the Rights of Indigenous Peoples (2009, IWGIA Publications) 170 Google Scholar.

31 ECOSOC res 2002/28 “Permanent forum on indigenous peoples”, available at: <http://www.un.org/en/ecosoc/docs/2002/resolution%202002-28.pdf> (last accessed 26 June 2017).

32 “Human rights and indigenous issues” Commission on Human Rights res E/CN.4/RES/2001/57, available at:  <http://www.unhcr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.RES.2001.57.En?Opendocument> (last accessed 26 June 2017).

33 Parkipuny, M “The human rights situation of indigenous peoples of Africa” (1989) 4th World Journal 2 Google Scholar.

34 Id, para 6.

35 Ibid.

36 Ibid.

37 Bob, C The Marketing of Rebellion: Insurgents Media and International Activism (2005, Cambridge University Press) at 81 CrossRefGoogle Scholar.

38 “An address to the United Nations Working Group on in [sic] Indigenous Populations, July 1992” at 2, available at: <http://www.ohchr.org/Documents/Issues/IPeoples/EMRIP/StudyAccessToJustice/Ogoni.pdf> (last accessed 26 June 2017).

39 KS Wiwa “A deadly ecological war in which no blood is spilled but people die all the time” (speech on 4 January 1994,  Bori, Nigeria, before a gathering of 300,000 Ogoni people) in Tal, A Speaking of Earth: Environmental Speeches that Moved the World (2006, Rutgers University Press) 186 at 189Google Scholar.

40 An indigenous peoples’ NGO.

41 “Editor's preface” in Veber, H, Waehle, E et al. (eds) Never drink from the Same Cup: Proceedings from the Conference on Indigenous Peoples in Africa (1993, CDR /  IWGIA) 5 Google Scholar.

42 The Indigenous World 2001–2002 (1999, IWGIA Publications) at 453 Google Scholar.

43 Arusha Resolution 54(2) (1999, Indigenous Affairs – IWGIA Publications), para 21.3.

44 These conferences were held in Kidal, Mali and Gaborone, Botswana. “Reports of the seminars on multiculturalism in Africa: Peaceful and constructive group accommodation in situations involving minorities and indigenous peoples”: Arusha, Tanzania, UN doc E/CN.4/Sub.2/AC.5/2000/WP.3; Kidal, Mali, UN doc E/CN.4/Sub.2/AC.5/2001/3; Gaborone, Botswana, UN doc E/CN.4/Sub.2/AC.4/2002/4.

45 Burman, BK “Indigenous” and “Tribal” Peoples and the UN International Agencies (1995, Rajiv Gandhi Institute for Contemporary Studies) at 6 Google Scholar.

46 Thornberry, P International Law and the Rights of Minorities (1993, Clarendon Press) at 339 Google Scholar; Barsh, RL “Revision of ILO Convention No 107” (1987) 81/3 The American Journal of International Law (current developments) 756 at 757CrossRefGoogle Scholar; Thornberry Indigenous Peoples, above at note 4 at 43.

47 E Daes “Standard setting activities: Evolution of standards concerning the right of indigenous peoples”, UN doc E/CN.4/Sub.2/AC.4/1996/2, para 22.

48 Ibid.

49 For example, a voluntary fund for indigenous peoples was established by UN General Assembly res 40/131 of 1985 to facilitate the attendance of indigenous peoples at international indigenous fora. The fund has been used to assist people from Asian countries including Bangladesh and India, and African countries such as Tanzania. See Sanders, DE “Indigenous peoples: Issues of definition” (1999) 8/1 International Journal of Cultural Property 4 at 7CrossRefGoogle Scholar. In addition, the World Bank stated that “the terms ‘indigenous peoples’, ‘indigenous ethnic minorities’, ‘tribal groups’ and ‘scheduled tribes’ describe social groups with a social and cultural identity distinct from the dominant society that makes them vulnerable to being disadvantaged in the development process. For the purpose of this directive, ‘indigenous peoples’ is the term that will be used to refer to these groups”: World Bank operational directive 4.20 (September 1991), para 3, available at:  <http://www.ifc.org/wps/wcm/connect/835cc50048855270ab94fb6a6515bb18/OD420_IndigenousPeoples.pdf?MOD=AJPERES> (last accessed 25 July 2017).

50 Martínez Cobo “Study of the problem of discrimination”, above at note 20.

51 The sub-commission called it “a reference work for definitive usefulness” and invited the working group to rely on it: UN Sub-Commission on Human Rights res 1985/22, para 4(a).

52 J Martínez Cobo “Study of the problem of discrimination against indigenous populations”, UN doc E/CN.4/Sub.2/1986/7/Add.4, para 379.

53 Id, para 380.

54 Pentassuglia, G “Towards a jurisprudential articulation of indigenous land rights” (2011) 22/1 European Journal of International Law 156 CrossRefGoogle Scholar; E Daes and A Eide “Prevention of discrimination against and the protection of minorities”, UN doc E/CN.4/Sub.2/2000/10, para 45; Gilbert Indigenous Peoples’ Land Rights, above at note 2 at 4–7; Xanthaki, A Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land (2007, Cambridge University Press) at 11 CrossRefGoogle Scholar; Anaya Indigenous Peoples, above at note 19 at 50.

55 Barnhart, RK The Barnhart Concise Dictionary of Etymology (2003, HarperCollins) at 57 Google Scholar.

56 Thornberry Indigenous Peoples, above at note 4 at 48.

57 Gilbert, J “Indigenous peoples’ human rights in Africa: The pragmatic revolution of the African Commission on Human and Peoples’ Rights” (2011) 60/1 International & Comparative Law Quarterly 245 at 250CrossRefGoogle Scholar.

58 Kidd, C and Kenrick, J “The forest peoples of Africa: Land rights in context” in Couillard, V, Gilbert, J, Kidd, C and Kenrick, J (eds) Land Rights and the Forest Peoples of Africa: Historical, Legal and Anthropological Perspectives (2009, Forest Peoples Programme) 4 Google Scholar; decision on the UN Declaration on the Rights of Indigenous Peoples: doc.assembly/AU/9 (VIII) add.6, para 7.

59 Daes “Standard setting activities”, above at note 47, para 64.

60 Thornberry Indigenous Peoples, above at note 4 at 48.

61 Tomei, M and Swepston, L Indigenous and Tribal Peoples: A Guide to ILO Convention No 169 (1996, ILO) at 5 Google Scholar.

62 Tong, M “The UN special rapporteur on human rights and fundamental freedom of indigenous peoples” (2002) 2 Indigenous Affairs Journal 36 at 38Google Scholar.

63 Indigenous and Tribal Peoples’ Rights in Practice: A Guide to ILO Convention Number 169 (2009, ILO) at 5, note 1.

64 Wick, RT “Revisiting the emerging international norm on indigenous rights: Autonomy as an option” (2000) 25 Yale Journal of International Law 291 Google Scholar at 297.

65 “World indigenous organizations” are international organizations, such as the World Council of Indigenous People and the International Working Group on Indigenous People's Rights, that advance indigenous rights. “Standard-setting activities: Evolution of the standards concerning the rights of indigenous peoples, information received from indigenous organizations”,  E/CN.4/Sub.2/AC.4/1996/2/Add.1, para 2.

66 Ibid.

67 Sanders, D “The legacy of Deskaheh: Indigenous peoples as international actors” in Cohen, P (ed) Human Rights of Indigenous Peoples (1998, Trans National Publishers) 87 Google Scholar.

68 Human Rights of Indigenous People: Report of the Working Group on Indigenous Populations on its Fifteenth Session, UN doc E/CN.4/Sub.2/1997/14, para.129; Discrimination Against Indigenous People: Report of the Working Group of Indigenous Peoples on its Fourteenth Sessions, UN doc E/CN.4/Sub.2/1996/21, paras 153–54.

69 Daes “Standard setting activities”, above at note 47, para 65.

70 ILO 169, art 7(4) and UNDRIP, art 29(1).

71 ILO 169, arts 13–15 and UNDRIP, art 26.

72 For instance ILO 169, arts 13–18 grant indigenous peoples autonomy in the use and control of their land in a manner that is not inconsistent with national laws. See Barsh, RL “An advocate's guide to the Convention on Indigenous and Tribal Peoples” (1990) 15 Oklahoma City University Law Review 209 at 215Google Scholar; UNDRIP, arts 3 and 4 provide for indigenous peoples’ right to self-determination and autonomy in their local affairs and the financing of their autonomous functions.

73 Ndahinda, FM “Marginality, disempowerment and contended discourses on indigenousness in Africa” (2011) 18 International Journal on Minority and Group Rights 486 CrossRefGoogle Scholar.

74 Watts, MJ “Contested communities, malignant markets, and gilded governance: Justice resource extraction and conservation in the tropics” in Zerner, C (ed) People Plants and Justice: The Politics of Nature Conservation (2000, Columbia University Press) 28 Google Scholar.

75 South Africa, Zimbabwe and Liberia are exceptions.

76 This is demonstrated by para 2 of the preamble and art 6 of the General Act of the Conference at Berlin (26 February 1885) 3 American Journal of International Law 7 at 14, which refer to the African people in colonial territories as “indigenous populations”. Similarly art 22 of the League of Nations Covenant refers to the people inhabiting certain parts of south-western Africa as “indigenous populations”: Ndahinda “Marginality, disempowerment”, above at note 73 at 496–97.

77 Kingsbury, B “Indigenous peoples in international law: A constructivist approach to the Asian controversy” (1998) American Journal of International Law 414 at 426CrossRefGoogle Scholar.

78 Ibid. Ndahinda “Marginality, disempowerment”, above at note 73 at 497.

79 Pentassuglia “Towards a jurisprudential articulation”, above at note 54 at 184–85; Barume “Responding to the concerns”, above at note 30 at 171–72.

80 The Indigenous World 2001–2002 (1999, IWGIA) at 453.

81 Ibid.

82 Report of the African Commission's Working Group of Experts on Indigenous Populations / Communities (2005, African Commission and IWGIA Publications) at 68–69, adopted in the 34th session of the African Commission in Banjul in 2003.

83 Id at 15–19.

84 Id at 14.

85 Ibid.

86 Eastern and central Africa.

87 Report of the African Commission's Working Group, above at note 82 at 15.

88 Schweitzer, P “No escape from being theoretically important: Hunter-gatherers in German language debates of late nineteenth and early twentieth centuries” in Barnard, AJ (ed) Hunter-Gatherers in History, Archaeology and Anthropology (2004, Berg Publishers) 69 Google Scholar at 72.

89 Lee, RB and Dally, R The Cambridge Encyclopedia of Hunters and Gatherers (1999, Cambridge University Press) at 1 Google Scholar; Schweitzer, id at 73.

90 Ndahinda “Marginality, disempowerment”, above at note 73 at 486; Ndahinda, FM Indigenousness in Africa: A Contested Legal Framework for Empowerment of Marginalized Communities (2011, Asser Press) at 73 CrossRefGoogle Scholar.

91 Report of the African Commission's Working Group, above at note 82 at 17.

92 Hodgson, DL Once Intrepid Warriors: Gender, Ethnicity and the Cultural Politics of Maasai Development (2001, Indiana University Press) at 50–59 Google Scholar and 126–34.

93 Id at 150.

94 Report of the African Commission's Working Group, above at note 82 at 18.

95 Id at 87.

96 Ibid.

97 Ibid.

98 Id at 88.

99 Id at 87.

100 Bojosi and Wachira “Protecting indigenous peoples”, above at note 3 at 397.

101 Ibid.

102 Report of the African Commission's Working Group, above at note 82 at 78.

103 Id at 93. Daes “Standard setting activities”, above at note 47, para 69.

104 Moiwana Village v Suriname IACtHR (series C no 124) judgment of 15 June 2005, paras 132–35; Saramaka People v Suriname IACtHR (series C no 172) judgment of 28 November 2007, paras 79–84.

105 World Bank operational directive 4.20, above at note 49, para 5.

106 Report of the African Commission's Working Group, above at note 82 at 93 (emphasis original).

107 Id at 74.

108 Martínez Cobo “Study of the problem of discrimination”, above at note 52, para 20.

109 Ibid.

110 Ibid.

111 Id, para 366.

112 Report of the African Commission's Working Group, above at note 82 at 89.

113 Ibid.

114 Ibid.

115 Hodgson Once Intrepid Warriors, above at note 92.

116 Report of the African Commission's Working Group, above at note 82 at 89.

117 Ibid.

118 Id at 93.

119 Id at 89.

120 Ibid.

121 Id at 93.

122 Kenya refused to consent to UNDRIP on the basis of the debates on aboriginality. See Barume “Responding to the concerns”, above at note 30.

123 Above at note 1.

124 Id at 1, para 3.

125 Id at 3, para 14.

126 Id at 4, para 16.

127 The Kenyan High Court ruled that the community had effectively lost any legal claim to the land as a result of the designation of the land as a game reserve in 1973 and that the court had no jurisdiction to adjudicate on the collective rights of a community: id at 3, paras 11 and 12.

128 Id at 13, paras 73–75.

129 See section above on “Distinguishing characteristics of indigenousness in Africa”.

130 Endorois, above at note 1 at 32, paras 140–42.

131 Id at 37, para 156.

132 Id, para 157.

133 A precedent in this regard was also set by the IACtHR. In Mayagna (Sumo) Awas Tingni Community v Nicaragua the court held that the Awas Tigni were indigenous people, notwithstanding arguments by the government of Nicaragua that the Awas Tigni community was a group with 600 members that had splintered off from a “mother” indigenous community: IACtHR (series C) case no 79 (judgment of 31 August 2001), para 141.

134 Endorois, above at note 1 at 44, para 173.

135 Id at 37, para 157.

136 IACtHR series C no 124 (2005); Endorois, id at 38, para 158.

137 IACtHR series C no 172 (2007); Endorois, id at 38–39 and 52, paras 158, 159–60 and 198.

138 Endorois, id at 38–39, paras 158–59.

139 Capotorti defined minorities as: “A group numerically inferior to the rest of the population of a state, in a non-dominant position, whose members (being nationals of the state) possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show if only implicitly, a sense of solidarity, directed towards preserving, their culture, traditions, religion or language.” See F Capotorti “Study on the rights of persons belonging to ethnic, religious and linguistic minorities”, UN doc E/CN.4/Sub.2/384/Rev.1, para 568.

140 Gilbert Indigenous Peoples’ Land Rights, above at note 2 at xv.

141 Johnston, DM “Native rights as collective rights: A question of group self-preservation” (1989) 2 Canadian Journal of Law and Jurisprudence 19 CrossRefGoogle Scholar at 32.

142 Daes and Eide “Prevention of discrimination”, above at note 54, para 45.

143 Minority Rights: International Standards and Guidance for Implementation (2010, UN Publications) at 4.

144 Endorois, above at note 1 at 36, para 154.

145 Daes and Eide “Prevention of discrimination”, above at note 54, para 37.

146 Ibid.

147 MA Martínez “Human rights of indigenous peoples”, UN doc E/CN.4/Sub.2/1999/20, para 90.

148 Slimane, S Recognizing Minorities in Africa (2003, Minority Rights Group International) at 1 Google Scholar.

149 “World directory of minorities and indigenous peoples: Kenya overview” (2012, Minorities Rights Group International), available at: <http://www.refworld.org/docid/4954ce2a30.html> (last accessed 5 July 2017).

150 The World Fact Book: Kenya (2014, Central Intelligence Agency), available at: <https://www.cia.gov/library/publications/resources/the-world-factbook/geos/ke.html> (last accessed 24 July 2017).

151 Ibid.

152 Ibid.

153 Indigenous groups in Africa often describe themselves as “indigenous minorities” and their organizations are often defined as indigenous minority organizations: Slimane Recognizing Minorities, above at note 148 at 3.

154 See section above on “Distinguishing characteristics of indigenousness in Africa”.

155 Martínez “Human rights”, above at note 147, para 89.

156 Ndahinda “Marginality, disempowerment”, above at note 73 at 486.

157 Ibid.

158 Kingsbury “Indigenous peoples”, above at note 77 at 415.

159 See section above on “Distinguishing characteristics of indigenousness in Africa”.

160 Watts “Contested communities”, above at note 74 at 29–30.

161 Ndahinda “Marginality, disempowerment”, above at note 73 at 486.

162 Endorois, above at note 1 at 39, para 161.

163 Above at note 137, IACtHR judgment of 28 November 2007.

164 Endorois, above at note 1 at 40, para 162. See also Saramaka, id, para 164.

165 Saramaka, ibid.

166 Endorois, above at note 1 at 40, para 162.

167 UNDRIP, art 5.

168 An example is the African Commission's decision in Social Economic Right Action Centre v Nigeria, comm 155/96.

169 Rules of Procedure of the African Commission on Human and Peoples’ Rights 2010.

170 Id, rule 112(2), (3) and (4).

171 Id, rule 118(1).

172 Id, rule 112(8).

173 The pledge was made by Kenyan Minister of Land James Orengo. See Ashamu, E “ Centre for Minority Rights Development (Kenya) and Minority Rights Group International on Behalf of Endorois Welfare Council v Kenya: A landmark decision from the African Commission” (2011) 55 Journal of African Law 300 CrossRefGoogle Scholar at 311.

174 R Marlin “The Endorois decision: Four years on, the Endorois still await action by the government of Kenya” (September 2014) Terra Nulluis Journal, available at: <https://terra0nullius.wordpress.com/2014/09/23/the-endorois-decision-four-years-on-the-endorois-still-await-action-by-the-government-of-kenya/> (last accessed 26 June 2017).

175 International Working Group on Indigenous Peoples The Indigenous World: 2014 (2014, The International Work Group on Indigenous Affairs) at 579.

176 S Maiga “Intersession report of the Working Group on Indigenous Population / Communities in Africa” (October 2012), paras 14 and 15, available at: <http://www.achpr.org/sessions/52nd/intersession-activity-reports/indigenous-populations/> (last accessed 7 July 2017).

177 International Working Group on Indigenous Peoples The Indigenous World, above at note 175, para 2.

178 See African Commission res 257, paras 6 and 12.

179 ECR-Net “Implementing the ACHPR's ruling on the Endorois case” (October 2014), available at: <https://www.escr-net.org/node/365651> (last accessed 26 June 2017).

180 Gazette no 6708 (September 2014) of Kenya at 1.

181 Marlin “The Endorois decision”, above at note 174.

182 ILO 107 similarly applied the terms “tribal indigenous” and “tribal non-indigenous”.