Indigenous peoples and their rights : with special reference to their land rights and the right to self-determination in international law : a comparative study within the South African land rights context
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Date
2000
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Abstract
The problem of land rights for indigenous peoples is one closely linked to the right of self-determination. A problem which poses a barrier to such right is the meaning of the adjective "indigenous". While it is commonly used to denote that the subject is simply native to a place, its usage in referring to indigenous peoples in the context of international human rights is narrower. A definition that has been proposed, and which is generally used as a working definition for the purposes of international action, is the Martinez Cobo definition. According to this definition, indigenous peoples are also classified as minorities.
Other human rights closely connected to the right to land and self-determination for indigenous peoples are group rights, the right to existence, right to non-discrimination, the right to own culture, right to preservation of the identity of a group and the right to natural resources.
Land dispossession does not only have a negative impact on indigenous peoples, but on all humankind and also on the environment. Indigenous peoples also want to share in the natural resources of their land. Modern industrialisation for the purpose of economic development has also caused damage to the environment and to indigenous peoples. The impact of landlessness is a problem which needs to be addressed.
The right of self-determination is an important right for indigenous peoples. The five
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manifestations of such a right are discussed in Chapter 4. Self-determination has both an external and an internal aspect.
The problem of defining the term 'peoples' is said to be a barrier to the exercise of the right
of self-determination by indigenous peoples. Self-determination is related to aspects such as decolonisation, equality, sovereignty, statehood, cultural integrity, secession, territorial integrity and autonomy.
The relationship between self-determination, (and rights and natural resources is dealt with in Chapter 5. International institutions such as the United Nations and International Labour Organisations have intervened in trying to solve the land rights and self-determination problems for indigenous peoples.
A comparative study within the context of the South African Law, covers the following aspects:
1. The historical background of land rights in South Africa.
2. The racial zoning of various parts of the Republic into homelands and the division of lands into locations, tribal-bought land, privately-bought land and Trust land.
3. The provisions of the Native Land Act of 1913 and the Bantu Trust and Land Act 18 of 1936.
4. Land Reform for Black Land Rights legislation towards such reform, and the provisions of the Freedom Charter of the ANC.
5. The Redistribution of land under the doctrine of Aboriginal Title.
6. Land Reform after 1994.
7. The provisions of both the 1993 and the 1996 SA Constitution Acts.
Part li of Chapter 7 deals with the exercise of the right to self-determination in South Africa.
The question as to what is a 'national self is considered as compared to the international definition of the term 'peoples'.
Although the land rights and self-determination problem for indigenous peoples is a global problem which needs immediate legal attention, South Africa is also moving along with the provisions of various international instruments towards land reform. In search for a solution towards these problems, the effect of existing legislation towards land reform is analysed. It is clear that 'real' land reform cannot happen overnight.
Description
A dissertation submitted in partial fulfillment of the requirements for the Degree of Masters Legum in the Faculty of Law at the University of Zululand, South Africa, 2000.
Keywords
Land reform--South Africa, Land tenure, Land rights--South Africa