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Journal of

Journal of Energy & Natural Resourees Law

& Natural

Vol23 No 4


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on Energy, Envlronment, Natural
Resources and Infrastructure Law.
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Managing Editor
Prafessor Thomas Walde, Centre for
Energy, Petroleum & Minerallaw
& Policy,
University of Dundee, Scatland
Editorial Assistant
Mahmoud Reza Firoozmand, Centre for
Energy, Petraleum & Minerallaw & Policy,
University of Dundee, Scotland
Dr Alex Wawryk, lecturer, Law Schaol,
University of Adelaide
Assistant Editors
Or Arthur J Warden, Part-time lecturer
and Consu'ltant, Centre for Energy,
Petroleum & Mineral Law & Policy,
universlty of Oundee, Scotland
Janeth Warden-Fernilndez,
Centre for
Energy, Petroleum & Mineral Law & Palicy,
University 01 Oundee, Scotland (Mining)
Stephen Dow, Centre for Energy,
Petroleum & Minerallaw & Policy,
University of Oundee, Scotland
Mahmaud Reza Firoozmand
University of Dundee, Scotland
Geaff Hewitt, London, United Kingdom
Or Philip Andrews-Speed,
University af
Oundee, Scotland
Jos A M Bos, Simmons & Simmons Trenit,
Rotterdam, Netherlands
Michacl Dale, Deneys Reilz, Marshalltown,
Soulh Africa
Professor Thomas Walde, university of
Dundee, Scotland
Pablo Javier Alllan!, Estudio Bruzzan &
Asociados, Buenos Aires, Argentina
Chief Sena Anthony, General Manager
legallCornpany Secretary, LNG ltd,
lagos, Nigeria
Robert A Bassett, Darsey & Whitney lLP,
Denver, USA
Patrick Blanchard, Head of Executive
Office, Fuel Division, Electricit de France;
Associate Professor of law, University 01
Pars 10 Nanterre, France
Jos A M Bos, Simmons & Simmons Trenit,
Rotterdam, Netherlands
Stphane A Brabant, Herbert Smith,
Paris, Franee
Professor Adrian J Bradbrook, Bonython
Professor of Law, Universily of Adelaide,
Adelaide, Australia
Albert T Chandler, Chandler & Thong-Ek,
Bangkok, Thailand
Graham (oop, General Counsel, Energy


Brendan Devlin, Electricity and Gas UnIt,

DG Transport and Energy, European
Commission, Brussels, Belgium
Richard M Farmer, Thelen Reid & Priest
LLP,New York, USA
Professor William Fax, Catholic Universily
law Sehool, Washington oc. USA
Professor Zhiguo Gao, Exeeutive Director,
China Institute for Marine Affairs, Beijing,
PR China
Jonathan Hines, LeBoeuf lamb Greenc &
MacRae, Moscow, Russian Fedcration
Professor Moshe Hirsch, Hcbrew
University. Jerusalem, Israel
Kaj Haber, Mannheimer Swartling AB,
Stockholm, Sweden
Dr Nathalie Horbach, Centre for Transboundary Damage and Compensation,
Amsterdam, Netherlands
Or Andrei Konaplyanik,
Oeputy Secretary.
General. Energy Charter Secretariat,
Brussels, Belgium
Professor Charles leben, Panthon-Assas
(Paris 2) University, Director of the Institut
des Hautes Etudes Internationales, Paris,
Reinier Lock, O'Connor & Hannan lLP,
Washington Oc. USA
Rogelio lopez-Velarde,
Heftyc Abogados, Mexieo OF, Mexico
Prafessor Alastair R lucas, Faculty of law,
Universlty of Calgary, Alberta, Canada
David F Moroney, Kingswood, UK
Professor George (Rock) Pring, University
of Denver College of Law, Denver,
Colorado, USA
Nelson lara Dos Reis, (aemi Minera;ao e
Metalurgia SA, Rio de Janeiro, Brazil
Or AH Rodrguez Araque, President,
Petroleos de Venezuela, Caracas,
Professor Or Jens-Peter Schneider,
University of Osnabrck, School of law,
Osnabrck, Germany
Professor Ernest Smith, University of Texas
$chaol 01 law, Austin, USA
Atef Suleiman, Legal Adviser, Abu Ohabi
National Dil Company, United Arab
Professor Gillian O Triggs, Director,
British Institute for International and
Comparative law, london
Jacqueline lang Weaver, A A White
Professor of law, University of Houston
law Center, Houston, Texas, USA
Or lbibia Worika, Senior legal Counsel,
OPEC, Vienna, Austria
Professor Donald N Zillman, Dean,
University of Maine School of law,
Portland, USA

November 2005

pp 385-605

ISSN0264 6811


Janeth Warden-Femandez

Journal of Energy &

Natural Resources Law
is the Journal 01 the
Internatjonal Bar
Association's Seetion
on Energy, Environment,
Natural Resources and
Infrastructure Law.
It is published quarterly
and is cQ-sponsored by
the Centre for Energy,
Petroleum & Minera) Law
& Policy, University 01
Dundee, Scotland.

Articles appearing in this

journal are indexed in the
Environmental Periodicals
Bibliography and the
Internationaf Biblography
of the Social Sciences.

and Mahmoud


Indigenous Communities' Rights and Mineral

Janeth Warden-Femandez


Canadian Aboriginal Law: Creating Certainty in

Resource Development
Thomas Isaac and Anthony Knox


Indigenous Peoples' Rights to Minerals and the

Mining Industry
Judge Antonie Gildenhuys


Paradise Lost or a Seeond Chanee?

William Manning
Rio Tinto and Indigenous Community Agreement
Making in Australia
Bruce Harvey and Simn Nish
Indigenous Peoples. Energy and Environmental
Justiee: the Pangue/Raleo Hydroeleetric Projeet
in Chile's Alto BioBo
Marcos A Orellana
Preventing Violent Conflicts Caused by Infringements
of Indigenous Peoples' Rights: the Case 01 the
Ecuadorian Amazon
Adenike Esan









The views expressed in this Journat are those 01 the contributors, and not
necessarily those 01 the International Bar Association.



Training Seminars
and Conference Information

Aeadem/e Excellence

Professional Re/evance

1-5 May

4-8 September

Internatlonal Petraleum
Analysls ami Deslgn*

FIscal Sptems

Location: University of Dundee, Scotland,

Fee: 1,795


Seminar Director: Daniel Johnston

8.12 May

Negatlatlng and Documenting

IndusbJ Tl-ansactiDnsLcx:arion: University of Dundee,

Fee: 1,795



Janeth Warden-Fernandez* and Mahmoud Firoozmandt
Centre for Energy, Petroleum and Mineral Law and Poliey, University of Dundee


Seminar Director: Dennis Stickley

11-15 September

RlsIe Analysls and Declslon Maldng In

Petraleam Exploratfon*
Locaran: Unversity of Dundee, Scotland,

Fee: 1,995


Seminar Director: Daniel Johnston


'As aU economies begin io become inexorably linked into the universalist

and Managlng

Natural Gas

viUage, a process o/ basic redefinition o/ the nature and extent o/ pre-existing

paradigms and phiwsophies is being/orced upon indigencrus peopies warldwide.
Worldviews that once extended only to the next vaUey are being expanded to a
planetary perspective. lnherently holistic and all-encompassing traditional
tribal phiwsophieal pereeptions and perspedives, lifeworlds that once served



Fee: 1,795

of Dundee,



Seminar Director: Dennis Stickley

18-21 5eptember

15-19 May

Modern Praetia! In Petroleam


Locatan: University of Dundee, 5cotland,

Fee: 1,795



Industry Servfce Contl'acts .


Fee: 995

of Dundee,



to connect cause and eliect in a culturally aceeptable manner, ail in many

Seminar Director: Dennis Stickley

ways to explain present coneepts o/ reality'

Seminar Director: Michael Bunter

Brian Goehring
Indigencrus Peoples o/ the World:

22.26 May
Contracts used in IJtternatlonal
Lacatlan: University of Dundee, Scotland,

Fee: 1.795


An Introduction

18.22 5eptember

UK Gil

19.20 June

and Cas Law

Sr Andrews

Fee: 1,995

Annual CEPMLP Mlnlng Semlnar

Location: London

Seminar Directors:
Stephen Dow (CEPMlP)and
Penelope Warne (CMSCameron McKenna)

Fee: to be confirmed
Seminar Directors:
Dr Elizabeth Bastida (CEPMlP) and
Magnus Eficsson(Raw Materials Group, Sweden)
8-10 August
AsIa 011and Cas Law
Kuala Lumpur

Fee: 100 Seminar Directors: Col Roberts (Petronas)

and Stephen Dow (lones Day)
28.30 August

ProJed NegotiatIDns

Carnoustie, 5corland


to loor Pasl, Fresent andFuture,



5emjnar Directors: Praf Joho S lowe

and Praf Owen L Anderson



Seminar Director: Dennis Stickley

In almost al! the remote areas of the globe, the presenee of peoples
considered indigenous is cncountered. They are spedal people and in many
cases they have inhabited countries or regions that have been subjected to

Fo! fur.her informa/fOil regarrJing hes:? Seminars,

please comaCl.
Hugh Gunn, Serninar Co.ordinatOl
CEPMLP, University 01 Dundec, Dundec DDl 4HN
Scotland, UK
Tel: +44 (O) 1382 385871. Fax:+44 (O) 1382 345854
E-mail: h.j.b.gunn@dundec.ac.uk
Website: www.c(.pmlp.org
rates available for NGOs, academics
studcnts - subject to attend,rnce

Globalisation has catalysed the development of natural resources projects in

more remote areas. Nowadays, natural resources industries do not constrain
their activities to their own countries. Using the advantages offered by the
liberalisation ofinternational markets and technological advanccs, they have
moved their activities beyond boundaries. This increasing development of
natural resources projects in remote areas has increased the awareness of
the existence of indigenous peoples around the world.


'" janeth Warden-Fernandez

is a Research and Teaching Fellow, an Advisor of thc Mining
Prograrnme and the Manager of the Distance Learning Programme at the Centre for Energy,
Petroleum. Mineral Law and Policy at the University ofDundee
can be contacted by e-mail atj.z.wardcnfernandez@dundee.ac.uk.

Mahmoud Reza Firoozmand is a Doctoral Research Fcllow at CEPMLP. Before cornmencing

his PhD in 2001, Mahmoud had worked as a lawyer in the National Iranian Oil Company
(NIOC). He can be contacted at m.r.firo01.m:mrlftlrlllndee.3.c_uic





No 4



conflicts can be avoided and peace ensured in conflict zones would be lo

look for a workable agreerncnt between host governments, MOCs and
indigenous peoples, such as mase that exist in Australia and Canada.

Indigenous Communities'
Rights and Mineral
By Janeth Warden-Fernandez*
The contemporary trend in globalisation dedicated towards an integrated worfd
economy and rapid advances in technology have accelerated the development
of natural resources throughout the world. This fast tracking of such development has caused the migratan of mining companies into remoter regions,
hitherto untouched. In sorne cases these terrains are inhabited by indigenous
peoples who see in such development a threat leading to the infringement of
their traditional rights related to the use and management of lands which
they perceive are theirs by right of tradition and usage. Consequently, this
projected development of traditionallands has precipitated confliets that can
generate stagnation in the economic growth of countries, espedally those
that rely heavily on the development of their natural resources. If this is not
redressed it could be an on90in9 obstacle to the development of natural
resources. Such conflicts have arisen because of the diverging interests of the
principal stakeholders in mineral development namely sta tes, investors and
the indigenous communities. Therefore with the aim of avoiding this type of
conflict. it is imperative to find the fairest and most equitable approach, which
caters objectively for all the interests in volved.
Mining activities are.obviously limited to the areas in which mineral resources
are located. In many countries, the developrncnt of natural resources is seco
as ao esseotial prerequisite for economic growth. The accelerating

Jancth Warden-Fernandez is a Research and Teaching Fellow, an Advisor of the Mining

Programme and the Manager ofthe Distance Learning Prograrnme at the Centre for Energy.
Petroleum, Minerallaw and Palicy al the University ofDundee (CEPMLP/Dundee).

he conl.ac.l:e:d

bv fO_m;i1 ;al L7__

\&I::Irnnf"'rn<>n...l .~










development of natural resourees throughout the world, triggered by the

liberalisation oC international markets, technological advances and the
promise of finding more opportunities in pIaces hitherto untouched, has
led mining investors lo focus on remo te areas. (The term 'remote' is
deliberately used to emphasise the untouched naturc of such lacatians, which
are far beyond the confines oflarge urban and industrial centres. I) In many
cases such areas are located within the homelands of the indigenous peopIes
of the target countries, in which they have survived in their traditional way
while prescrving their cultural identity. The main factors that contributed
to this survival were undoubtedly the remoteness of these lands and the faet
that they were eonsidered by modern industry to be relatively unattraetive
in eeonomic terms.
Under such circumstances, development precipitates confliets beeause of
diverging interests2:
the interest of the state in obtaining more revenue and eneouraging
eeonomie aetivity by increasing the development of natural rcsources
through the investtnent of private capital;
the interest of the investor to do business and earn a profit; and
the interest of indigenous cornmunities, which goes beyond traditional
eeonomie eonsiderations, sueh as prcserving their culture, lifestyles and
biodiversity as well as proteeting the access and use of land.!

Cordcs pointed OUlthal 'Remoleness, in the modcrn era, oflen prescnts companies with
two.unique challenges. Qne is the challenge lO engineering design posed by operating in
enVlronmentally extreme and umested terrain. This adds lOthe uncertainty associaled with
possible environmental failures and lhe prospecl of harsh economic and political
consequences. The other is the possibility of operating in areas populaled by indigenous
peoples how viewand use land differently than lhat which is cuslomary in modern societies.
These peoples are now pressing their views and demands lO participale in decisions very
aggressively and with growing success': J ACordes, Mining and lndigenaus Peoples, paper
presen~ed al International Mining Coursc, CEPMLP, Dundee University, 1997.
2 See O OSlensson, 'The Stakeholders: Interesl and Objectives', in SustainableDeuelopmmt and
tht FutuTt: o/ Mineral Invtstmmt (2000).
3 The Sludy ofDiscrimination againsl Indigenous Peoples, prepared by the Special Rapporleur
J R ~artin~z Cobo, sta~es:.'Ilis essential lOknow and understand the deeply spirilual special
relauonshlp between mdlgenous peoples and their land as basic lo their exislence as such
and lo al! their beliefs, customs, lraditions and culture. For such peoples, the land is nOl
~erel~a r,ossessionand a meansofproduction. The entire relationship between the spiritual
Jife of mdlgenous peoples and Mother Earth, and their land, has a greal many deep-sealed
implications. Their land is not a commodity which can be acquired, bul a malerial e1emenl
lO be enjoyed reely.' This lexl is ciled in the Final working paper on indigenous peoples
and their relationship to land, prepared by the Special Rapporleur, Erica-Irene A Dacs.
~~il~~_~~~~~~, Economic and Social Council, Commission on Human rights, E/CN.4/






Indigenous communities' relationship with the land is deep-seated and

frequently based on spiritual and religious beliefs that form part of their
heritage. It is diffieult for Western societies to comprehend
the strong
conneetion between indigenous peoples, their land and its resources. This
cultural ehasm can often be bridged only with diffieulty.'
In the case of exploration and mining, development can confliet with the
rights ofindigenous peoples,5 especially those related to the use, access and
management of their lands and waters, leading in many cases to stagnation
of mining ventures until problems have becn resolved. This stagnation can
have an adverse impact on the economic growth of a country as a whole.
The opposition from indigenous communities to this type of development
is certainly, in cases, understandable, as in the past the exploitation of mineral
resources has provided substantial profits for governments and mining
eompanies, who ignored the faet that the resources were loeated on the
lands of indigenous peoples and that the peoples generally did not reeeive
any of these benefits.6 However, there is now a foeus on how to create adequate
instrurnents to allow mineral activity under conditions that wiIl contribute
to the global transition towards sustainable dcvclopment.'

4 The World Bank in its BO 4.10, which replaccs 00 4.20, recognises that 'thc identities
and cultures of indigenous peoples are inexuicably linked to the lands on which the
live and lhe nalural reSOUTceson which they dependo These distincl circumstance:
expose indigenous peoples to differenl types ofrisks and levels ofimpacts rom dcvclopment
projects, induding loss oC identity, culture, and cuslomary livelihoods, as well as exposure
lO disease': at hup:/ /wbln0018.worldbank.org/Instilutional/Manuals/OpManual.nsf/
5 The final report on indigenous peoples, compiled by the Foresl People Prograrnme as a
contribution lo the World Bank's Extractive Industries Review (EIR) , highlighted the lhreats
that resource developmenl projects can impose on indigenous peoples.
6 For a detailed analysis of the impacts of the mining, oil and gas industry on indigenous
peoples' rights, see Extracting.Pronlius: Indigenous Peop~, Extractiv~ IndustTUs and tht World
Bank, Synthesis Report, 2003, al hup:! /iris36.worldbank.org/domdoc/PRD/Olher/
PRDOCon lainer.nsf/ All+Documen ts/ 85256D240074B56385256FF6006E5E7 A/$File/
7 The application ofthe concepl ofsustainable developmenl lo the mineral industry involves
lhe promotion of and contribution lO the well-being and welfare of the people of the host
s~le, 'loday witho~l reducing lhe pOlential for future generations lo do the same': Mining,
Mmerals and Sustamable Oevelopmenl projecl (MMSD), BTtaking Nw Ground (2002), P 24.
In 2003, me lnternational Council oC Mines and Metals (ICMM) approved the ICMM
principies, againsl which its members and other companies thal have agreed lO adopt the
samc pcrformance obligations as ICMM memhers should measure lhe suslainable
developmenl performance of lheir activities. Compliance with these principies will be
a measure of corporate performance: W'WW.icmm.com/publications/1CMM_Principles_





UW Vol 23


4 2005

Within this context, and with the aim o avoiding conflicts in the course
of the development o mineral resources, the important question is: what
will be the best, fairest and most equitable approaeh that respeets all the
interests involved? T help answer this question, this artide provides an
overvicw o the differcnt legal approaches related to the recagnitian and
affirmation of the existence of indigenous rights in countries and regions
with a history o colonisation.
Defhtion oC indigenous peoples
There is no universal definition of indigenous people. Many studies and
discourses have attempted to formulate a definition but with Httle success,
hence a definition ofindigenous pcoples at internationallaw does not exist,
despite the fact that internationallaw has recognised the rights ofindigenous
peoples to exist as 'distinct, separate peoplcs.8 with tbeir own cultural identity.
Malanezuk highlights the diffieulty in understanding with clarity the main
difference between the definition of 'indigenous peoples' and 'minorities'.
He argues how the conceptof'peoples'
implies asocial identitywith particular
characteristics and with a relationship with a territory. Instead, minorities
suggest a 'numerical inferiority', which is not necessarily synonyrnous with
indigenous peoples. In the case of the concept of indigenous peoples he
concludes tllat it comprises elements of minorities and peoples. Nevertheless,
what in reality counts is the legal context and instrument in which this concept
is applied'
In 1982, the United Nations Economic and Social Council, Commission
on Human Rights, adopted a definilion as follows:
'Indigenous populalions are composed of the existing descendants of
the peoples who inhabited the present territory of a country wholIy or
partially at the time when persons of a different culture or ethnic origin
arrived there from other parts of the world, overcame them, and by
conquest, settlement or other means, rcduced them to a non-dominant
or colonial situation; who today live more in conformity with their
particular social, economic and cultural customs and traditions than
with the institutions of the country of which they now form a part,
under a state structure that incorporates mainly the national, social
and cultural characteristics of other segments of the population that
8 For a comprehensive
study 00 the evolutian of human rights standards and its impact 00
damestic laws in Australia, Canada and New Zealand, sce lorns Magallanes, CJ, 'International
Human Rights and their Impact 00 Domestic Law 00 lodigenous Peoples' Rights in Australia,
Canada and New Zealand', in Indigenous Peapks Rights in a Australia, Ganada & New Zealand
9 P Malanczuk, Modern lntroduetion to lnternational Law (Landan: Routledgc, 1997).





are predominant
Although they have llot suffered conquest ar
colonisation, isolated or marginal groups existing in the country should
be regarded as covered by the notion of Indigenous Populations for
the following rcasaos:
(a) they are descendants of groups which were in the territory of the
country al the time when other groups of differentcultures or ethnic
origins arrived there;
(b) preeisely beeause of their isolation from other segments of the
country's population they have preserved almost intact the customs
and traditions of their ancestors which are similar to those
characterised as Indigenous;
(e) they are, evell if only formally, plaeed under a state strueture, which
incorporates national, social and cultural characteristics, alien to

In 1983,J R Martinez Cobo, the Speeial Rapporteur of the Sub-Commission

on Prevention ofDiscrimination and Protection ofMioorities, in his Study o/
the Problem o/ Dismmination Against Indigenous Populations, elaborated a
definition of indigenous peoples that is commonly accepted and uscd by
the Working Croup 00 Indigenous Populationsll:
'lndigenous communities, peopies and nations [emphasis addedJ are thase
which, having a hislorical continuit.y with pre-invasion and pre-eolonial
societies that devel?ped on their territories, consider thmselves distinct
from other sectors of the societies now prcvailing 00 those territories,
or parts of them. They forro at present non-dominant sectors of societ.y
and are determined to preserve, develop and transmit to future
generations their ancestral territories, and thcir ethnic identity, as the
basis of their continued existence as peoples, in accordance with their
own cultural patterns, social institutions and legal system. This historical
continuit.y may consist of the continuation, for an extended period
reaching into the present of one or more of the following factors:
(a) Oeeupation of aneestrallands, or at least of part of them;
(b) Common aneestry with the original oeeupants of these lands;
(c) Culture in general, or in specific manifestations (such as religion,
living under a tribal system, membership of an indigenous
cornmunity, dress, means of livelihood, lifest.yle,etc);
(d) Language (whether used as the only language, as mother-tongue,
as the habitual means of communication at home or in the farnily,
or as the main, preferred, habitual, general or normallanguage);
10 In B Goehring, lndigenous PeojJks ofthe World (Canada: Purich Publishing,
11 UN Doc. E/CN.4/Sub.2/1983/2I/Add
8, par", 379-381.

1993), p 5.









(e) Residence 00 certain parts afthe country ' or in cert","

l.4:lIn regIDns
th e world;
(1) Other relevant factors.
On an individual basis, an indigenous person is aue who b 1
these indigenous populations through self-identificati
. cd.ongs to
00 as In 1genous
group. conscIOusness) and is recognised and acccpted by these
populatIons as one of its members (acceptance by the group). This

for these cornmunitics

the sovereign

right and power to decide

who belongs to them, without externa! interference

Thornberry12 highlights how the Working Group on Ind;genous Populations
~n ~any years of discussions. has not yet adopted a dear definition
peoples; the group exccutes its task 'bearing in mind' M tI.
I:5 D
ar nez
~Cport. unng the 15th scssion of the Working Group on Indigenous
PopulatlOns the Spec. 1 Ra
, .'
pporteur E 1 Daes pomted out that 'no single
definrtIon could capture th d.
. e lVCfSlty o mdlgenous peoples worldwide, and
I~wa~notdeslrable or posslble to arrive al a universal definition al the present
. Orre of the observers highlightcd that the working definition DE
~ndlg:nous peopl~s providcd in Martinez Cobo's report will suffice 'to
Idenuf}r who constltute an Indigenous Peoplc' Furth
ermore, many of the
reprcsentauves oE indigenous peoplcs who participated in the session said
there w~ no need lo provide 3n in terna tion al definition of indigenous
peoples smce there was no definition f"
o mmonues at mternatlOnaJ law
therefore It would be discriminatory if "indigenous peopIes" alone needc~


] 2 P Thorn berry, /ndigencrns P,.nhks nd H

at 2-60.
ghts ( Manchester: Juris Publishing, 2002),
]3 ThcWorkingGroupon1
d I
n tgenous opu atlOnsmcludes as partofits mandatc' '(a) Re .
evedopment~pe,rtaining to the promotion and protcction ofhuman rightsandftmdamc::
free oms of mdlgcnous nnpulati
. 1 d.
ons, me u mg Informanon requested by the Secretar
enera annually from governments, spccialised
organisations and non-governmental organisations ~~::~:~':~~:~~
of indigenous peoples, to analyse such materials and to submit i~'partl~u1~rlythose
reeommendations to the Sub-Com "
conc USlons and
rccommmdations conta'1IM'!he
mlSSlon, anng In mznd inter alia tM conclusions and
Martinc. Cobo, mtitle~ "St:
o :t;t
o{~ SMci~l~p!(JT~r
o/ tht Sub-Commission, Mr Josi R
(E/CN,4/Sub,2/1986/7 an~ ~dd,c;
against indigmous pcpulations
Other definitions and uses of the
Convention No 169 at
c~ncept o mdtgeno~s peoples are includcd in ILO
OP/BP 4 JO o I d.'
WWW.I1o.org/llolex/cgi-lex/convde.pl?C169. the World Bank
M a n u a ,'s / O~ ~ al~:n:~snPefo;~e~ 2a~:ttp://wbln0018,worldbank.org/lnstitutional/

E B 2A 3 5 3 8 5 2 5 6 7 2 E OO7 75 F 6 6 /
DepartmentofEconomic and Soc'alAff: '
and UOlted Nations
PFII%202004%20WS,]%203%2~Defin~~::,~:;v,un.org/ esa/socdev/unpfiV documents/
For a dctailcd study oC the historical evolution of the iro .act of thc d
natural reSOurceson indigenous rights , sec Cord eS,n 1 a bo ve.P
evelopment of





to be defined'. The group also concluded that the cntena set up in Martinez
eobo's report was enough to identify 'whether a person or community was
indigenous or not', Final1y, one of thc rccornmcndations of the Working
Group regarding the definition of indigenous peoples was 'to arrive at a
legal and social framework which could be used as a reference, and to
harmonise action and protect the rights of indigenous peoples' ,14 In
con sequen ce, what exists is a detailed concept of indigenous peoples, which
the spedal characteristics
that identify them: they are
descendants of the peoples who inhabited the country before colonisation;
they have preservcd their custorns and traditions - cultural distinctivenessand they are placed under a state structure different to their own.15 The
Organisation of American States, in the proposed American Declaration on
the Rights of Indigenous Peoples, says that the criterion to determine if a
particular group is indigenous is their self-identification as SUCh.16

Impact of mining activities


indigeoous rights

The particular effect of mining activities on indigcnous peoples' rights and

the socio-economic, cultural and environmental impacts in general are issues
of considerable contemporary importance, as was documented in Breaking
New Ground, the final report of the Mining, Minerals and Sustainable
Development Project.17 Indigenous communities, as described aboye, are
viewed internationally as being different and therefore subjcct to special
treatrncnt.18 Indigenous peoples have considered themselves differcnt froro
] 4 Special Rapporteur, Enca Irene A Daes, &PCTrt01 tite WV'TkingGroup on /ndigmous Populations
on itsfifrenth s~sion. E/CNA/Sub.2/1997/14.
15 Sce in general A Diaz, lnt.ernational Standard-Sttting on the Right.s o/lndigmous Ptoples:
/mplications lar Mineral Drotlopmcnt in Africa 7-3 CEPMLP, online journal, a[ www.
dundee .ac.uk/ cc pml p/ journal/hunl/ vol7/ articlc 7.3.h tm!.
16 www.cidh.org/indigcnous.hun,
17 MMSD, Brtaking New Ground (2002). The World Bank Group (WBG) ha~stated that 'Mining,
as well as the cessation oCmining where it has become uneconomic, can a150be a cause oC
poverty or adversely affect the living conditions oCthe poor and other vulnerable groups',
For a detailed Iist of potential negativc impacts of the mining activities see World Bank,
Mining and Poverty Reduction, at http://web,worldbank,org/WBSJTE/EXTERNAL/
TOPI es/ EXTOGMC/O"con tentMDK:202461 Ol-menuPK:509413-pagePK: 148956piPK:2166] B-theSite PK:336930,00,h un 1,
18 Anara and Williams sUte: 'One of thc most notable feature5 oC the contemporary
internationaI human rights regime has beeo the reeognition ofindigenous peopIes asspecial
subjeets oC concern. A diserete body oCinternational human rights law upholding the
collective nghts of indigenous peoples has emerged and is rapidly developing': S Anaya
and RA WilIiams, 'The Protection oflndigcnous Peoples' Rights Over Lands and Natural
Resources Undcr the Inter-Arncrican Human Rights System' (2001) ]4 Harvard Human
Rig"" <>urna, Spring 2001.








4 2005

the new cornmunity moving iota their territory and have generally persisted
with the desire to preserve their own culture, ethnic identity and political
and social systems.19
The coloniser, conquerar or invader was generally motivated by the
acquisition of new terraio, which therefore - in the view of the legal system
they brought with them - usually negated the rights of indigenous peoples.20
In the last tWQ decades, however, internalional bodies have drafted
instruments that give the indigenous cornmunity rights over land and the
right to participate in the decision-making process in relation to issues that
affeet them, especially those related lo the development and management
of natural resources.21
There is clearly an increasing global awarencss concerning the rccognition
of indigenous rights over land. In the case of the development of natural
resources, espccially mineral resources, this issue is of great importan ce.
Mining companies are interested in finding good projects in which they can
invest to obtain a profit. In order to rcalise this aim, companies initial1y
select the most promising arcas in the New World countries situated in
Australasia and the Americas, and to sorne extent in Africa.22 AH these new
countries were and still are inhabited by indigenous communities who havc

19 M A Chubb, 'nternauonal Human Righu and N(JTI.Rmwabk Natural Resources: Autachthanous

Righu aj Influence Over the MineraL Development Prouss, ImplicatianJ far CorpflYate Palicy,
Dissertation to obtain LLM Degree in Mineral Law and Policy, CPMLP, 1997, at 2.
20 Brownlie sets out five models of colonisation:
(1) An extension of powers without the necessity of any incursion of settlers into the country
and the recovery of independence
without a majar dernogrdphic change, eg Ghana
and Nigeria.
(2) Typical colonisation with an inflow of settlers, eg Kenya and Southern Rhodesia. The
importance of this model is that when de-eolonisation is achieved the sell..lers can be
allowed to stay with the compromise of taking citizenship and remaining part of a
multiracial society.
(3) Aggressive colonisation, with the aim of climinating the indigcnous cornrnunity or at
least evicting them from their lands, eg Indians in South America.
(4) So-called 'self-determination',
in which indigenous
as minority
communities, have an opportunity lO make a decision on their nationality.
(5) The 'League ofNations' mandate, which restrained the radical forms of colonisation.
I Brownlie, Treat~ and lndigmous Pwpks (Canada: Purich Publishing, 1992), pp 1-3.
21 For a comprehensive review ofme evolution ofindigenous
pcoples' rights over land under
sce MOrellana, 'Indigcnous Peoples, Mining and International
Law', in
Finding Common Ground. report published by me International
Institute for Environmcnt
and Development, 2003. For a detailed review on '(i) me practice under the international
system on the use of the terms "Indigenous Peoples" and 'Tribal People"; and () an
overview of the emerging principies of international
law on indigenous
peoples, and
me cxtent to which the proposed Bank Policy is consistent with such principIes', see http:/
I siteresources.worldbank.org/INTINDPEOPLE/Publications/2057]
167 ILegal %20






different perceptions of the development of their lands that were their

traditional property. This potential conflict of interests imposcd a burden
00 host states of resolving the impasse, since security of tenure is a key issue
in investment decision-making for mining projects.
When deciding to invest in mineral developmcnt, it is of vital importance
to know who owns the resourccs. With the exception of the United States,
and a few other countries or with rcspect to specified minerals, mineral
ownership is generally vested in the state. In Latin American countries with
a tradition of civillaw and a regalian systcm,2~the state has unrestricted and
exclusive dominion or proprietary rights over mines and minerals. In civil
law countries, proprietorship over the land does not extend to the ownership
of minerals of the subsurface. In countries with a coromon law tradition, the
owner of the land generally owns the minerals located in the subsurface
usque ad caelos usque ad inJeros.2'4 In the case of mineral resources located in
indigcnous lands, the deve10pment of such wealth can generate conflicts
and in sorne cases violence because they put in direct confrontation the
views of Western societies and indigenous peoples regarding the surfacc
and sub-surface rights distinction. Indigenous peoples oflen hold in high
regard religious or spiritual attachments
that may not be known or
understood by outsiders.25
22 Connell and Howitt point out that 'the expansion of mining into more remote areas has
coincided with the depletion of established mines, increasing cos15 in many metropolitan
mines, ncw methods of eXlracting mineral resources (especially epithermal gold) and more
adequatc geological exploration and surveys':] ConncIl and R Howitt (eds) , Mining and
lndigenuus Peopks in Australasia (1991), P 2.
23 In me -regalian system lhe state is the original owner of the mineraIs without any consideration
of who owns the surface of the land. The other system is called the accession system, in
which the ownerofthe land is the ownerofthe mine as well. UnderUS legislation, minerals
belong to me proprietor oC the land, therefore the exploration and cxploitation of mines
are subject to private agreemen15. Furthermore,
in mining counmes with a eommon law
system such as the United States, Canada and Australia, 'a large proportion of mining
occurs on lands hcld by the government - "public domain"lands,
"Crown lands", or the
like - where private surface oeeupants, if any, are usually governmenl tenants who can be
required lO eave in favour ofmincral development': MMSD, Breaking NroJ Orottnd: Mining
Minerals and Sustainable Dtvelcpment (2002). A1so see T Walde, 'Third World Mineral
lnvesunent Policies in the Late 1980s; From Restriction Back to Business' (1988) :3MineraL
ProassingandExtractive MetaUurgy Reuiew 121-182 and World Bank, Strategyfar African Mining,
World Bank Technical Paper No 181 (1992).
24 TWatde, MinerolDtvtwpment gislatWn: Rtsull and lnstrument al Mineral DrotLopmmt Planning,
12 (1) NRF (t988).
25 See, in general, International
Work Group for Indigenous Affairs, 'lndigenous Peoples
and Land Rights', at www.iwgia.org/sw2:3I.asp. Scc also the final working paper preparcd
by the Special Rapporteur, Irene-Erica A Daes, on lndigenous peoples and their rclationship
to land, E/CN.4/Sub.2/2001/21,
at www.hri.ca/forthcrecord2001/doeumentation/
commissionl e-en4-sub2.200 1-21.h tIn.





Vol 23


4 2005

What is needed are tooIs that will facilitate a process that leads to an
equitable dcvelopment of the mineral resources of indigenous lands, where
appropriate, through the participation of these cornmunities in decisionmaking over a potencial mining project and the distribution of its wealth in
a fair and equitable way." Indigenous peoples should have the right to free,
pnor an mlorme
cansent. The ooly way lo guarantec that a mining
venture promotes sustainable development is through the participation of
aH key stakeholders in the decision-making proccss - governments, mining
companies and cornmunities, including indigenollS cornmunities, where their
rights are affected.28
The mining industry is a key activity to the Australian econorny.29 Australia is
a big producer and exporter of metals and minerals, including gold, coal,
iron ore, base metals and alumina. Owing to the vast size ofthe country, the
26 Convention No 169 eoncerning lndigenous and Tribal PeopIes in Independent Counlries,
adopted by ihe General Conference of the International Labour Organization
(Geneva, 27 June 1989). This Convention, which carne into force on 5 September 1991,
contemplates in itsArt 7: 'The peoples concerned shall have the right to decide their own
pliorities for the process of development as it affects their lives, beliefs, institUlions and
spiritual well-bcing and the lands they occupy or otherwise use, and to exercise control, to
the extent possible over their owo cconomic. socia! and cuhuraI development. In addition
uley shall participate in the formularion, implementation and evaluation of plans and
programmes for national and regional development which mar affect them directIy.'
27 World Bank BP 4.10, 2005, No 2, reaffirms ihe right ofindigenous peoples to 'Free, Prior,
and lnforrned Consultation'. When a project affects lndigenous Peoples, the TI (Bank's
Iask tean) assists the borrower in carrying out free. prior, and informed consultation with
~fected ~om~unities about thc proposed project throughout the projcct cycle, taking
lOto conslderatlon lhe following: (a) "free, prior and informed consultation"isconsultation
lhat occurs freely and voluntarily, withOUl any externa! manipulation, interference, or
coercion, for which (he parties consulted have prior access to information on the iment
an~ scope ofthe proposed project in a culturally appropriate manner, form, and language
... : http://wblnOOI8.
28 ~or a.d~tailed ~ccount of_thecharacteristics. roles, interests and objectives of the stakeholders
m ml~mg prOJects, see Ostensson, n 2 abovc, at 3-1/30. Also see O stensson, 'Playcrs in
the Mmeral Industry', in E Bastida, T W;iJdc andJ Warden-Fernandez, lntn'national and
Ormparative Mineral Law and PoliCj (The Hague: Kluwer L.awInternational




29 'Since ~~ late 19805, res.ource extraction has annually contributed around five per cent of
Australia s Gross Domestlc Producto Over the past three decadcs, mineral and energy exports
~ave ann.uaIly average~ more than 35 per cent of Australia's total receipts. The mining
mdustry IS ~lle ofthe blg~est contributors to Austra.lia's export trade and it is a vital part of
the Australian economy: see Australian Stock Exchange, at www.asx.com.au/investor/
industry / mining/ overview.huu.







industry has developed an extensive, essential infrastructure thathas brought

progress to isolated locations. Since the last century, the ownership of
minerals in Australia has been vested in the Crown.
Wcstern Australia, Queensland and the Northern Territory, which provide
more than 85 per cent of Australia's total mineral production, also have the
largest proportion of potential claimable land, such as vacant Crown land.
Since the 19905, debates about native title clams have had a marked negative
impact on the mining industry, particularly on account ofunclear legislation
and the impetus that the native title issue has had in international fora.
In Australia, indigenous peoples'!O rights are not cnshrined
in the
Constitution; they largely arise and are protected under common law. In
this role, common law is an evolving legal system. Given that Australia shares
origins with other common law countries with a comparable history of
colonisation, its courts also draw 00 the experiences oreanada, New Zealand
and the United States.
When English settlers arrived in 1788, they regarded the Aborigines who
occupied Australia for over 40,000 years as primitive. Thcre was no advanced
system of government, and the indigenous population laeked a well-organised
social systcm. Subsequently, the Europcan settlers did not initially recognise
the sovereignty of the Aborigines.31 No trcaties or agreements were signed.
In other words, the Austtalian indigenous people were ignored52 and Australia

30 In Australia ihe term 'Aboriginal cornmunities' is generally used when referring to

indigenous peoplcs. The right.s and interests ofindigenous pcoples derived frorn traditional
laws and customs over land and water and recognised at common law are known as native
31 BartIeu. when making reference to the legal history of native title in Australia. says 'In the
absence ofwhat the common lawcourts then perceived to be an ~eslablished system oflaw"
the territorywas considercd subject to "settlemcnt" and the introduction an application of
common law. Australia was characterised as such a territory. As the indigenous inhabitants
of the territory were so disregarded, so initially did the common law of Australia enable a
disrcgard lO their rights to land. The common law of Australia has only very belatedly
recognised native titIe to traditional land and only to the residue that was left to the
indigenous inhabitants'. RH Bartlen, Nativ~ Title in Australia (Sydney; Butterwonhs, 2000),

32 The British Crown acquired sovereignty over Australian land on the 'grounds ofinjustice',
a" is pointed out by Wells and Doyle: 'The notion of the ~discovery~ of lands acquiring
absolute sovereignty over those lands, is equally unjust: the principie that the "discovery~
of land'. inhabited by an iodigenous population vests sovereignty in the "discovering~
nation i5 (similarly) based 00 the proposition that Indigenous people are insufficientIy
civilised or Christian to merit being viewcd as competing sovercign powers. Fortified by
the ilIusion of superiority, European powers claimed that the act of settlement in itself
divests Indigenous Peoples of any and aH sovereign authority over their land and their
Conlinued fJtJulzaj







L\w Vol23 No 4 2005

was considered as terra nullius.3~ As a consequence, the Crown acquired

complete sovercignty ayer Australian tcrritory and absolute property rights
ayer the entire land. Between then and the early 1980s, Aboriginal
cornmunities were grantcd sorne statutory rights related lo lands that they
used for hunting or ceremonial purpases and occasionalIy lo construct
dwellings. Froro the middle of the last century onwards, Aboriginal reserves
were cstablished for the use and benefit oC the indigenous cornmunities.
The land was sharcd with Aboriginal cornmunities without the existence of a
clearly defined legal regime that reeognised their rights.
In 1982, thc Mabo case was initiated against the State of Queensland over
the claims to lands of the Murray Islanders. In 1992, le High Court of
Australia found sufficient evidence to decide that these lands were the
property of the indigenous community before the British settlerncnt and
consequently the concept of land ownership survived the annexation of
Australia to the British Crown and its assertion of sovereignty. The decision
rejected thc position that declared 'Australia a vacant uninhabited land
belonging to no-one - terra nuUius',35 because this was not the case, since
people': B Wells andj Doyle, 'Reconciliation and the Constitution', in Indigrnous AwtraLians
and the Law (E johnston, M Hinton and D Rigney. eds, Sydney: Cavendish Publishing,
1997), p 187. P Havemann, in providing a chronology oC the colonisation of Australia by
the British, states; 'year 1776, Navy's First Fleet under Captainjarnes cook claims to acquire
continent for British Crown by virtue oC "discovery" o Terra Nullius (land belong to no
one) Discovery consist oC coming ashore at Botany Bay: (Sydney). Orders we~e to acquire
territory with the "consent oC the natives", bOl Cook does not consider the Aboriginal
people he encounters capable oCgiving such consent': P Havemann (ed), lndigmous Peoples'
Rights in AUJtralia, Canada, &New ilaland (Auckland: Oxford University Press, 1999), P 25.
33 Yerro nullius means empty land o~ no man's land. This term was a legal fiction that in the
17th ccntury allowed European colonial pOWCrs to assume control of land that was
unclaimed. This principie was extended during the 18th century allowing European powers
to 'settle in lands occupied by "backguard" people where no system o laws or ownership of
property was held to existo The Swiss philosopher and internationallaw
theorist Emerich
de Vattel, building on the philosophy ofjohn Locke and others, proposed that tnTa nullius
also applied where land was oot cultivated by indigenous iohabitants. Since the land was
not being cultivated, it was not being put to good use, therefore those who could cultivate
the land had a right to the land', at hup://en.wikipedia.org/wiki/Terra_Nullius.
Bartlen states that 'by 1992 a distioction was recognised io international law and the
coulInon law between territories acquired by conquest or cession and those acquired by
settlement. Territory inhabited bya people who did not have a recognised social or poltical
organization was considered "terra nullius" in international law. Sovereignty over terra
nullius was established by settlernent or effective occupation by a sovereign states'. See
Bartlen, n 31 aboye, at 23 (2.21).
34 For a comprehensive

review o the legal history oC native title, sce Bartlett, n 31 aboye, al

35 Brennanj, in his reasoning forjudgment, emphasised how in cOJ}lemporary law the notion
that land inhabited by indigcnous people who were regarded as 'Iow in the scale of social
organisation' may be c1assified as 'terra nullius' is not acceptable. He went further, remarking~







indigenous people were living there first. The Mabo decision was applied
initially ooly to the Murray Islands, not to mainland Australia.56
For Aboriginal people, thc Mabo decision was just recognition of thc
injustice perpetrated whcn the colonists arrived and deprivcd them of their
freedom, culture and religious beliefs, which greatly diminished the selfdetermination rights of their cornmunity. This principie of self-detcrmination
is upheld by the Australian indigenous cornmunities, founded on the fact
that the British colonists arrived only 200 years ago, by which time the
Aborigines had already been living there for more than 40,000 years, with
'total control ovcr their Uves'.The various 'indigenous rights are channelled
through the self-dctcrmiriatlon principie. These have been classified into
three main categories:
'autonomy rights: which focus upon the right oC Indigenous Peoples to
determine the wayin which they live and control their social, cconomic
and political systcm; identity rights: which are related to thc right to exist
as distinct peoples with a distinct culture; and territory and resource rights:
which encompass such things as land entitlements, the right to the
resources of that land, and the use of those resources.'"
The judgment was also seen as a success because it was based 00 laws that
the same colonists brought with them and was not a 'political favour'. At the
time, this decisio~ led to the filing ofmany claims - sorne of thern unfounded
-with an obvious negative consequcnce for the mining industry. The decision
also posed severa! politieal and legal problems for the states, including:
'The common lawofthiscountrywould
perpetuate injustice ifitwcre to continue to embrace
the enlarged notion of terTa nullius and to persist in characterising the indigenous inhabitanlS
of the Australian colonies as people too low in the scale o social organisation t be
acknowledged as possessing rights and interest~ in landstates'; (1992) 175 CLR 1 at 39, 4142,63.
36 The Mabo decision. which did no[ fix any scope and/or extcnt o the nalure of the native
tille. created uncertainty in the land holder and lease grant holder. This uncertainty is
caused by the requirements lO establish native title, which are vague and ambiguous; '(1)
Traditional connection with or occupation of lands under lhe laws and customs o the
group, (2) The existence oan idenlifiablc community or group which is entitled to Native
Title and (3) The substan(ial maintenance oC the connection with lhe land since its
annexation by the Crown.' Therefore a plural presence in the land is nol necessary to
claim il. This situation has resulted in large tracts oC the terrain o mainland Australia
coming under or being subject lo native tille claim. with unavourable consequences for
the mining companies that sometimes have lo wait long periods until the claim is resolved.
In this comext, the difficulty oC delermining thc connection oC lhe Aborigines with the
land is thc application of the cuslomary law of the Aboriginal community. which is linked
with spiritual beliefs; the rules do not bear any comparison with Western property laws. W
D Kcn, Na/ive TitkLand Rights inAwtralia and tite lmplicalions lar ResouraDt:tJeLopment (Dundee:
CPMLP, 1995), pp HH3.
37 See WeUs and Doyle, n 32 aboye, at 197.










the need to validate titles issued after the cornmencement of the Racial
Discrimination Act 1975, which might have becn rendered invalid by that
a requirement lo make provision for permitted future development of
land affected by native tille;
the need to provide a regime for the speedy and efficient determination
of issues of native titlc.
The findings o the Mabo decision can be surnmarised as follows~:
the coun rejected the doctrine that Australia was ter7a nullius al the time
of settlement;
the Crown gained radical title to the land of Australia on settlement bUl
this did llot wipe out native title;
after scttlement, governments couId extinguish native title by legislation
or by granting interests in land (such as freehold tille);
in the case of the states, the power to extinguish native title is subject to
the overriding Racial Discrimination Act 1975;
subject to this Act, no cornpensatory damages are payable for extinguished
native tille.
In 1993, !he Native Tille Act (NTA) was promulgated, as a response to !he
Mabo decision. It uphcld !he Mabo decision and set forth !he rights of !he
Aborigines in SOrnespecific cases to rule their own land undcr their traditional
form of law and custom. The NTA provides for the claimant of native tille
the right to negotiate. This right is additional to the rights of native titIe
claimants and will he used before any decision is taken, which recognises
their titIe at common Jaw. Noting that native titIe is a 'pre-existing titIe to
land', the NTA sets out processes through which native title can be
In December 1996, !he High Courtof Australia, !hrough!he Wikdecision,'"
restated the fundamental principIes of its decision on Mabo regarding the
existence and recognition of native title at COrumon law and reaffirrned that
native title was 'oot a common law tenure but rather an interest in land that
was capable of coexisting with other interests in land'.~1 NevertheJess, the
substance of the interest in land was not specified, although the decision

38 SeeAustralians fol'"Native Title and Reconciliation


(ANTaR) , at hup:/ /antal'".dovenetq.net.

39 F~~ a ~etailed analysis ~f the state of the native title, see in general M Tehan, A hOfM
dml1usumld, an opportumty lnsl? &jlectiom on common Law, Native Tillt and Trn Years o/ tlu
Native Titk, al www.austlii.edu.au/au/journals/MULR/2003/19.html.
40 (1996) 187 CLR 1.
41 M Tehan, Coexistmu o/Interests in Land: A Dominant
www.aiatsis.gov.au/rsrch/ n tru/ n tpapen/ n tip 12.pdf.



the Common Law, at






made it clear that the scope of native title derived froID the traditions and
customs exercised by the Aboriginal communities before the European
settIers arrived and that each case needed individual consideration on its
own merits.
The Wik decision was the first to establish that if there is a conflict between
pastoral leases' rights and nativc tille rights, the former will prevail. The
native tille rights were subordinated to those of the pastoral lease-holders.
The validity oE the coexistence of different rights over the same land is
specified, defining the interest of each of the parties to prevent conflicto
The grant o a pastoral lease did not extinguish aH native title rights .
Therefore, as a consequence of the Wik decision, many of the exploration
and mining tenements were in dangcr of being declared invalid, because
the government granted them on me assumption that the granting of pastoral
leases had extinguished native titIe and therefore there was no need to comply
wim the mechanisms established by the NTA. The grant of mining tcncments
on pastoralleases from lJanuary 1994 should have gone !hrough the right
to riegotiatc process. In response to the Wik decision, and after severaJ
discussions, the Cornmonweallh Governmcnt issued the 'IO-Point Plan',
which set up ten principJes for amendment o the NTA. The Native Title
Amendment Act 1998 (NTAA) provided for !he validation of potentially
invalid acts that created interests in land belWeen the commencement of
!he NTA (1 January 1994) and!he Wikdccision (23 December 1996)."
In. August 2002, another important decision was delivcred by the
Australian High Court known as the Ward decision.~3 This decision ruled
rightc;under native titJe can be individually extinguished by governmenlal
actions, such as the granting of mining leases;
a series of partial extinguishments can fully extinguish native title;
when the interests and rights granted by a mining lease conflict with mose
derived from native titJe, the rights and interests under the mining lease
will prevail;

42 For a detailed 3tudy on this subject, see AustTaLian/orNative Titltand RLconciliation (AGi), al
43 {2002] HCA 28. See Goldfields Land & Sea Council's repon 00 lhe Ward case al
judgmenl 'Ieaves continuing uncerlainty surrouoding the resolution of na~lve utl~ ISS~CS.
Mining companics will continue lO negotiate individual agreements Wllh nat1v~ utle
ciaimants, which will take time and resourccs as me only way lO avoid me alternallve of
drawn-oul and costly courl procccdings and subsequent appeals': 'Native tiue case only
partially conclusive', MiningJ(YUrna~ 16 August 2002, p 111.






No 4 2005

any native title to minerals was extinguished

promulgated by the state.

by the mining legislation

Through the initiative o the Cornmonwealth Minister ror Industry, Science

and Rescarch, in 2001, the Indigenous Cornmunitics/Mining
Regional Parmerships Prograrnme was initiated. Thc prograrnme was funded
through a budget of A$1.2 million over fout years, starting in 2001." This
resulted [roID the recognition o a cultural change in the relations bctween
the mining companies and the indigenous cornmunitics and the need [or a
long-term partnership between these stakeholders. The government provides
support [or the indigenous communities through building capacity and thc
developmentof cornmcrcial cnterprises. The mining companies participating
in such prograrnrnes are committed to:
providing jobs for indigenous people;
providing pre-employrnent training;
providing skills and career development for indigenous employees;
offering business opportunities to local communitics; and
facilitating opportunities for investment by indigenous businesses.
In response to the Mabodcdsion, since 1995, Ro Tinto has started to promote
a new relationship with the Aboriginal and Torres Strait Islander People,
with the aim of assisting thero to achieve 'cconomic independence through
employrnent, business development and training'. Ro Tinto's Aboriginal
and Torres Strait Islander Peoplc's Policy states16:
'In aHexploration and devclopment in Australia, Ro Tinto will consider
Aboriginal and Torres Strait Islander people's issues:
Where there are traditional or historicaI connections to particular land
and water, Ro Tinto wilI engage with Aboriginal and Torres Strait
Islander stakeholders and their representatives
to find mutually
advantageous outcomes.
Outcomes beneficial to Aboriginal and Torres Strait Islander people
wilI result from listening to thero.
Economic indepcndencc
through direct employrnent, business
development and training are among the advantages that Ro Tinto
will offer. We will give strong support to activities that are sustainable
after Ro Tin to has left an area.

44 For a delaled analysis ofthis decision, see specialEdition;


Natifl~ Titkafter

Ward, 21-3AMPLA

45 See Australian Department of Industry, Tourism and Resources, Pursuing Common Goals, at
www.isr.gov.au/assets/ documen ts/ itrin ternet/ overview. pdf.
46 Rio Tinto's complete document

at www.isr.gov.au/assets/documents/itrinternet/




This policy is based on recognition and res~ect. Ro !into recognises

that Aboriginal and Torres Islander people In AustralIa:
Have been disadvantaged and dispossessed
Have a spedal connection to the land and waters
Have native title rights recognised by law.
Ro Tinto respects Aboriginal and Torres Strait Islander people's:
Cultural diversity
Aspirations for sclf-sufficiency
Intcrest in land management.'
Sin~e 1994, Rio Tinto has signcd more than 30 mine dcvelopment and
exploration land access agreements that in many cases have taken .place
outside the native title proccss. Worth mentioning in this context lS the
Yandicoogina Land Use Agreement signed in 1997 with the Gumal,a
Aboriginal Corporation,
for the developme~t of Hamersley Iro~ s
Yandicoogina iron ore project in the Pilbara rcglOn of Western Austr~la .
Through this project Rio Tinto has provided training an~ cducatlO.n
programrncs for the Aboriginal cornmunity, hclpcd to bU1~dup thelr
businesses and given them employrncnt. This new programmc mvolves the
traditional landowners in township matters, environmental work, and
heritage and culture protection. In 2000, Ha~ersle~ Iron signed a
Memorandum of Undcrstanding with the cornmumty of Eastern Guruma,
in which the terms of negotiation for an Indigenous Land Use Agrcement
(ILUA)" covering 10,000 square kilometres have been stipulated.48
47 'The main advantage of an ILUA is tllat it provides contractual certai.nty. An IL~-:-,once
. tered is a binding agreement in respect of aH future acts, effecuvely permlttmg the
. .
It overcomes
parties to contract out of the future act and the right to ~le~Otlate proV1slOn~.
the common law principie that the contraet is only bmdmg on .the .par.ues who Slgn It
(personally or through their agent) and will bind all holders ofnauv~ ~tle m th~ area even
though they may not be parties to it': M Hunt, 'Native Title andAbongmal Hentage Issues
Mfecting Oil and Gas Exploration and Production in Australia' (2?0l) .~9JE~ 368. For a
content and types o ILUAs, see National Natlvc 11l1e Tribunal, at
The total number oflLUAs at ~ptember 2005 w~ 202.
They are distributed asfollows: Queensland, 120; Wester.n Australia, 3; Northern Terntory,
56; Victoria, 14; New South Wales, 4; and South Austraha, 5.
48 P Cameron and E Correa, 'Towards the Contractual Management of Pubhc.Paruclpauon
Issues: A Review of Corporatc Initiative', in Human Rights in NaturallU.sourceDcveWpment
Z.llman A Lucas and G Pring, eds, Oxford: Oxford University Press, 2002). Cameron and
indicate as features o the development agreements betwecn RiT'
o UHO an dthe
Indigenous Communities the following:
Long.term benefits are sought through the agreements.
Negotiationsover company proposals are to be conducted through a 'medIator' and the
process recorded in a Memorandum of Understanding; the principIes and procedures
tO guide negotiations are describcd.
Can/inUffl ~af










4 2005

There are many other cases in Australia of successful partnership

prograrnmes between major mining companies and indigenous communitics,
sueh as those of Anglo Coal Australia Pty LId, Auiron Energy Limiled, BHP
Iron Ore, Normandy Mining Limited, Pasminco Century Mine and WM:C
Resources Ltd." Nevertheless, despite the willingness showed by major mining
companies to engage with indigcnous communities in the dcvelopment of
mineral resources, therc is still much to be done to find a mechanism that
addresses aH the conflicting interests and so avoid the sprcad of stagnation
in the mining industry.
New 'kalmu1
The situation in New Zealand is different frorn that of Australia for many
reasoos, including the differenee in the size of the country and the fact that
the Maori cornrnunity owns only five per cent of the total land arca.
Furthermore, mining activities are not of great importan ce to the national
economy. Moreover, New Zealand differs from Australia in that the
preservation of the Maori culture was recognised as an objeetive at the outset
of the European oecupatioo. Therefore these indigenous peoples had a say
in the political decision-making process in New Zealand. The legal instrument
through which Maori rights were recognised is the Treaty ofWaitangi, which
was signcd in 1840 by a largc representative proportion of the indigenous
population and the British Government. This important document validates
the transfer of the sovereignty of the Ncw Zealand territones to the British
Crown. In the case ofNew Zealand, the colonisation scenario represented a
complete departure froID the existing models.50 Through the adoption of
the Waitangi Trcaty, the Maoris obtained the same rights and duties of
citizcnship as the British people.

Committee structure set up to facilitate implementation

consultations to take place among the parties.

oC the agreement, with regular

Specific commitments to cover social impactassessments; health facilities; compensation

al mine site and along pipeline corridor, detailed provisions on employment and training.
Claimants undertake to support rnining company's exploration and miniog activities,
and oot to oppose the grant offuture grant oC tenements.
49 For a review of cases of partnership agreements ~tween (he mining industry and the
indigenous communities, see Indigmous Partnerships PTogram _ Case Studies, at www.
isr.gov.au/ con ten ti itrin ternet/ cmscon ten t.cfm ?ObjectID=5F6E940E-CB3E-4F3282E6F79FlE07BE26.
50 See Brownlie, n 20 aboye, at 1-3 (Canada: Purich Publishing, }992). Prau highlights that
the Treaty represented a convergence of three spccific issues:
(l) lhe 'civilising purposc' that was then uscd as a justification for land sei7.ure and ,British






The most important paiot hefe is that the colonisation of New Zealand
was apparently lawful in relation lO the transfer of land. The 'principIe of
legality' was recognised,51 However, it seems that the real implementation of
the principIes sel forth by the Waitangi Treaty was nol aehieved until 1975
with the promulgation ofthe Waitangi Aet." This sel up a Waitangi Tribunal,
which is empowered to make recommendations
to the government about
any claim submitted to it. Its work is eomplementary to that of the courts,
although the tribunal's decisions are not binding. Qne very important point
is that the claims heard must be against the Crown and not against privatc
owners. This would be unsatisfactory as it stands, because there are claims to
lands that are now private property.
The ownership of sub-soil minerals by the Crown in New Zealand is not
as exclusive as in Australia. There are private property rights to the subsoil. Before 1913, the mineral rights on land belonged lo the owner of the
private property. During the colonial era, the theory was that the development of natural resources would bring advantages to aH members of the
Thcrc are two theories that explain the origin of the governmen ts
implanted over the British colonies. Qne is the theory of 'Divine Right of
,Kings' and the other is that promoted by scholars, that the origin comes
from the 'consent of the communities'. The latter, for obvious reasons, is
now the commonly accepted interpretation
and the only one that still
survives. Accordingly, a sine qua non for British Crown sovereignty was that
the indigenous cornmunities' consented to the ncw legal order, By that time
the clearIy prevailing bclicf was that the official acquisition of tribal consent
was a condition of the constitutionality of British Government within the
colonies. An express consent was a prerequisite to British annexation, Within
this context, the Treaty ofWaitangi is seen as a materialisation ofthe approach

(2) me demographyofNew Zealand, with the colonised Maori significantlyoutnumbering

their coloniscrs, as they did until around 1860;
(3) logistical practicalities determined by the distance between this outpostofEmpire
Creat Britain .
J Pratt, 'Assimilation, Equality, and Sovcreignty in New Zealand/ Aotearoa', in lndigmuus
PeopLesRJghts in Australia, Canada & New aland (P Havemann, ed, Oxford: Oxford
University Press, 1999).
51 The Waitangi Treaty inrroduced the exclusive right of pre-emption or purchase ofland by
the Crown, as the legal insu-ument for extinguishing Maori customary title.
52 'An Act to provide for the observance and confirmation, of the principies ofthe Treaty of
Waitaogi by establishing a Tribunal to make recommendations on c1aims rclating t~ the
practical application of the Trcaty and to determine whether certain rnatters are conslstent
with the Treaty: See Brownlie, n 20 aboye, at 83.


LAw Vol 23 No 4 2005

of the contractual theory and the foundation of British sovereignty ayer the
Maori cornmunity.53
Despite the apparent Success in the treatment of the indigenous peoples
of Ncw Zealand through the signing of the Waitangi Treaty in 1840,
controversics related lO the interpretation of both versions (Maori and
English) still exist. This is attributable to lbe large cultural gap belWeen lbe
Maoris and the Europeans and the difficulty encountered in 1840 in
translating the indigenous language, especially in the ahsence of a written
formo It is hard lo knowwhat right~, in reality, the Maori cornmunity thought
it was transfcrring
lo the colonisers. Many debates aIid scholarly
interprctations have becn pro"duced since, oriented towards attaining a
conclusive determination of the differences and common ground of both
parties. The Waitangi Tribunal and lbe Court of Appeal, after recognising
somc of the principIes of the Treaty, stated that these must be interpreted in
a dynamic sense.55

53 Jn the respon!>c ofLord Clcnelg to the proposal in 1837 ofthe New Zealand Association of
asystematic colonisation, he set'i out the position ofthe Crown ofobtaining the permission
of the tribes in order to establish iL'iimperium. 'It is difficult or impossible to find in the
history of British colonizalion an example of a colony having ever been founded in
derogation of such aboriginal rights, whether ofsovereignty or ofproperty, as are those oC
the chiefs and people ofNew Zealand. They are not savages living by the chase, bul tribes
who have apportioneu
the country between them, having fixed abodes, with an
acknowledged property in the soil, and with some rude approaches to a regular system of
internal government It may be therefore be assumed as a basis for aH reasoning and al!
conduct on this subj~ct, that Grtat Britain has no legal or moral right ro tStablish a colon, in New
Zealand, without tlu fret consmt o/ tlu natives, deliberately given, without ccmpulsion, and without
/raud. To impart to any individuals an authority lO establish such a colony, withollt first
ascertaining the consent ofthe New Zealanders. orwithout taking the most effectual security
lhat the contract which is to be made with them shall frcely and fairly be made, would, as it
should seem, be to make an unrighteous use of our superior power.' (Emphasis added.)
This quotation can be found in 1H Kawharu (ed), Waitangi: Maori and Pakeha PerspectivtS o/
tM Treaty o/Waitangi (1989), p 30.
54 Walker, regarding the interpretation of the Waitangi Trcaty and the establishment oC the
British sovereignty, states that the Treaty was 'tile first step in the subversion of Maori
sovereignty. The world subversion is appropriate, because none of the chiefs signed with
their intelligent consent They wcrc gulled ioto it by deceptive translation'. What the Maoris
intended to cede was the governancc oftheir lands but oot the sovereignty as it appears in
the offidal translatioo. See R J Walker, 'Maori Sovercignty, Colonial and Post-eolonial
Discourses'. in Indigrmous Peopks' Rights in Australia, Ganada & New lealand (P Havemann,
ed, Oxford: Oxford University Press, 1999). For an introduction to the Treaty ofWaitangi,
see J Davies, Basic !ntroduction
to the Tuat, Q/ Waitangi, at www.arena.org.nz/
tino % 20rangatiratanga. h tm.
55 In the Atiawa Report, the Court of Appeal referred to the Tribunal observations, which
state: 'The spirit of the Treaty transcends the sum total of its component written words and
puts narrow or literal interpretations out ofplaee. The Treaty was an acknowledgement of
Maori existen ce, of their prior occupation of the land and of an intent that the Maori







The new IegisIation, the Resource Management Act and the Crown
Minerals Act, which carne into force in October 1991, took into account the
provisions of the Waitangi Treaty. The Resource Managemcnt Act56 slates
the obIigations to:
'rccognise and provide for the relationship ofMaoris to their ancestral
land, watcr, sites, wahi tapu and other taanga (or treasures) .... Raye
particular regard to kaitiakitanga (guardianship of resources) aod take
ioto accouot the principIes of the Waitangi Treaty. In consequcnce, to
initiate any kind of mineral resource deyelopment, the deveIoper has
to negotiate with the Iandowner, who cannot refuse access for minimurn
impact developments. In the case of land belonging to the cornmunity,
th"eMaoris have the right to refuse access if it is considered sacred by
the tribe. The refusa! of access can occur during any stage ofthe mineral
deyelopmeot activity, but the Mioister can overturn the decision if hc
or she considers the proposal to be in the public ioterest.'57
Iodigenous rights in Canada are protected by the Constitution, aod there is
a long history of treaties between indigenous cornmunities and the
government. The recognition of indigeoous rights was not as latc as in
Australia, but also llot as earIy as io Ncw Zcaland, where it was brought about
at the beginniog of coIonisatioo.
In 1763, lbe Royal Proclamation issued by King George 1I of Creat Britain
stipulatcd that a portion ofland that remained vacant (without the presence
of settlers) io possession of the indigenous people must be reserved for them.
However, it was also Slated that the indigenous peoples couId transfer their
rights to the Crown. Aftcr this, a series of treaties were signed between the
colonists and the iodigenous communities while the new settlers expanded
across the country. But what is the basis of Iegitimacy of the Crown's
presence would remain and be respected .... The Treatywas also more than an affirm~tion
of existing rights. It was not intended to merely fossilize a status quo but to proVlde a
direction for future growth and development The broad and general naturc of its words
indicates that it was not intended as a finite contract but as the foundation for a developing
social contracto We consider then that the Treaty is capable of a measure of adoption to
meet new and changing circumstances provided there is a measure of consent and an
adherence to the broad principIes': P Mac Hugh, TM Mami Mana Carta: Nr:w ZeaJand 1Aw
and tM Treaty o/Waitangi (1991), pp 4-5.
56 See in detail 'About the Resource ManagementAct' in New Zealand Ministry for Environmento at www.mfe.govt.nz/laws/rma.
57 For a guide on how to get involved in resource management decision-making. see New
Zealand Ministry for Environment at www.mfe.govt.nz/publications/ nna/ rma-guide-jul04/










sovereignty ayer Canadian territory? Decisions of the Supreme Court of

Canada asserted thal the Crown assumed sovereignty Qver the territory of
Canada by conquest or discovery.
In 1973, an important decision was taken by lhe Supreme Court ofCanada
in lhe case of Calderv Attornry-GeneralBritish Columbia, 58 in which it was agreed
by the majority of the justices that native title existed al law and continued to
exist unless it had beco validly extinguished.!i9Mter this decision, the federal
government began a comprehensive land claim process lOscttle aboriginal
tirles ayer land thal remained in the possession of Aboriginal peopIe. The
government has signed several agreerncnts with the indigenous cornmunities.
Within these modern land claim settlements, the indigenous peopIe waive
their rights to issue future land clairns in exchange for participation in thc
rnanagement of the land with respect to aH the issues concerned with this
process, such as environrnental protcction, tax regime, compensation,
ernployrncnt, and so 00_60
The Nunavut Land Agreement, signed in 1993 after 17 years ofnegotiation,
is a rnodel for transfcr of title and rnanagement oflands and natural resources
from indigcnous peoples to the Crown. It is an important agrccment because
the cornpromise it contains seems to be relatively fair and equitable for both
parties. Whethcr it proves so in practicc remains to be seen. It eovers an
58 'The decision in Caltkrv Atwrney-Gtm.eral o/British Columbia was handed down by me Supreme
Court ofCanada on 31January 1973. It is often credited with having provided the impetus
for the overhauling of the land c1aimsnegotiation process in Canada. The case was initiated
in 1968 by the Nisga'a Tribal Council against lhe Government ofBritish Columbia. Thc
murt recognised the possible exislence of Aboriginal rights to land and resources (thus
overturning the Coun of Appeal's finding), butwas equally divided on the issue ofwhether
the Nisga'a retained title. The decision nevertheless prompted the federal government to
devclop new policy to address Aboriginal land daims. 1976 saw Canada commencc
negotiations with the Nisga'a Tribal Connl, however British Columbia did notjoin the
negotiations unti! 1990. The Nisga'a Final Agreemcnt was conduded
in 1999 and
implemented by legislation in 2000', at www.atns.net.au/biogs/AOOI933b.htm.
59 1 Isaac, Abmiginal Law: Cas~, Materials and Commmiary (1995), pp 20-35.
60 The most important land daim settlements - modem day treaties _ after the Calderdedsion
are:James Bay and the Northem Quebec Agreement, in 1975; the Northeastern Quebec
Agreement in 1978; the Inuvialuit Final Agreement in 1984; the Cwich'n Comprehensive
Land Claims Agreement in 1992; the Claims Agreement with the Tungavik Federation of
Nunavut in 1993; the Final Agreement with the Coundl ofYilkon Indians in 1993; the
Sahtu Dene and MetisAgreemcnt in 1994 and the Nisga'aAgreement.in.Prindple
in 1996.
AlI these agrecments, which had been confirmed by federallegislation, confer rights that
are protected by me Constitution Act of 1982. The finalisation of the agreements took
years; for instanc:.e the Nunavut Claim Agreement took 17 years to finalisc. See id, at
255-266, and M Ivanitz, 'The Emperor Has No Clothes: Canadian Comprehensive Claims
and Their Relevance 10 Australia'. in P Moore, Land, Right.s, l.Aws: lssues o/ Native Titk
(1997), P 8. Also see Indian and Northern Affairs Canada. at www.ainc.inac.gc.ca/pr/info/




extensive area in the northwest of Canada (355,000 square ki1or~et~es,

including water and marine arcas). Through th~sagreem~nt, the ~nUlttnbe
'cede, release and surrender' all their rights, tItles, and mterest l~, and .to
lands and waters to the Federal Crown, in exchange for flnanclal
compensation, participation in the deve~opmen.t of their lands and the
establishment of a special code for regulanng InUlt lands.
Notwithstanding this history of treaties, land clai~ s.ettlements and ~e
constitutional protcction of indigenous rights, there IS sull sco~e for conf1~~t
. C nada - first because not all the indigenous peoples have slgned treaUes
In a
. h d
d secondly there are substantial tracts of land with unexungUls e
an ,
th F deral
aboriginal title that could be the subject of claims. Furth.er~ore,
e e
Indian Act - the rnost important legal framework for mdlgenou~ peoples,
which endorses the holding of lndian status, band counclls (lo~al
government) and the rulesfor the rnanagementand ad~ioistration ofIn~lan
reserves- does not apply to aH indigenous groups. For mstancc, the InUlt of
northern Canada do not have reserves and are therefore not affected by thc
Indian Act. The Metis group, like the Inuits, have no reserves and al~o h~ve
not signed a treaty. Their native rights are therefore subject to the legIslatIon
of the Province.lH
Latin America

Far-reaching mining and investrnent reforms in Latin America have placed

sorne countries among the leaders in attracting invesunent, and have ~so
stirnulated their economic growth_ Recent surveys have shown that d~nng
the last five or six years the Latin American regioo ~as received more pnvate
exploration invesunent than any other region, and lt now attracts more than
22 per cent of the global exploration budget.
. .
When the Spaniards arrived in Latio America
~ear~ago, the mdlgenous
cornmunities already had a relativcIy advanced rnmmg md~stry. In f~ct, few
new discoveries of alluvial gold were made under the Spamards du~ng the
colonial era. The difference was that for the indigenous populatIons thc
resources extracted had a spiritual and religious value, not a monetar~ one.
The Spanish conquerors brought to lhe 'New World' lhe co~cept of mIneral
wealth. At the time of the conquest in 1492, sorne 75 ffillhon people were
living in lhose lands, mainly in lhe highlands of lhe Andes and lhe lands
located between Panama and Mexico. It is believed that more than half of


. owners h'Ip an d man agement of minerals in Canada,

61 For further details concerning natlve
d th
see BJ Barlon Canadian Law o/ Mining (1993), pp 80-113.
.. MeXlco, Ce ntra IAro.enca, Sou thAmencaan
62 The Larin American
region compnses
West lodies.






4 2005

lhe indigenous population perished in less lhan 50 years. By 1592, probably

no more than a quarter survived.63
In most cases, the Spanish and Portuguese conquerors adjudicated the
owncrship afthe land by occupation. since there was no legal titIe that verified
the entitlement of the indigenous people.64 It is suggested that in Latin
America indigenous peoplcs have different kinds 01' titles that support their
traditional rights over the lands they occupy. Sorne are cornmunalland tides,
which originated in colonial times. Others are based 00 the material
possession of the land without the need for a written title. A third category is
the title obtained as compensatian for injustice and discrimination. There
have beco different approaches related to land ownership in accordance
with the era in which they evolved.65
The colonial period was characterised by the implementation of coercive
regimes in which the indigenous cornmunities were required to work in a
determined arca to produce a taxable surplus. Mter the conquest, the Spanish
colonisers vested the property of the native lands in the Spanish Crown.
Before independencc, sorne indigenous cornmunities managed to buy lands
from the Crown. This produced the so-called indigenous cornmunity. In the
case of the inhabitants of the lowlands, they did not rcccive spedal protection
or recognition of any rights, since the terrain theywere living in was oflittle
interest to the colonisers. Thcse zones wcre consigned to the missionaries,
who organised the cornmunities within reserves.
With independence, individual forms of land propcrty were prornoted.
Since the indigenous cornmunities were people with little education, land
ownership became concentrated in a few hands. Indigenous people were

63 See Latin Amtrica History, al the Latin American

latinoamericahistory.h tm.

AlIiance Web, 'W\W.latinsynergy.org/

64 L Nesti, Indigen01.il ptop!e.s' right to land: InternationaJ standards and possible thveWpments. Tite
cuLJuralvalue o/ land and tM nk with 1Mprouction o/ the mvironmenl. The pmpective in the case
o/ Mapuclu-Pechuenclte, European Masters Degree in Human Rights and Democratisation
University oC Padua-University of Deusto, 1999, at www.xs4alI.nl/-rehue/art!nestl.hunl:
Ne~ti ~es:.
'The lack of a legal tit:1eand the non-recognition of their speciallink with
thelr terntones has been used by Slates until OUTdays to expropriate indigenous peoples
la~ds for devel~pment projecls, military occupation. border security. division into small
pnvale properues to be sold to individuals or for tounsm projects. In other cases Slates
have recognised Indigcnous peoples' right lO land bUl never implemented il, n~r have
protected these lands from exploitation companies or rom people interested in their
resources. Many times states have nOl made a distinction between the lands and the resources
of the subsoil. auributing to themselves the permanent sovereignty over these latter and
alIowing for exploration and exploitation projects in indigenous peoples' lands without
consulting them or compensating them for the 1055ofland or the damage received.'
65 R Plant an~ S Hvalkof, Land Titling and Indigm01.il Ptf>jJ[,s (Inter.American Development
Bank. Sustamable Development Department, Technical papers. 2001).







given small pieces ofland for their subsistence in exchange for chcap labour.
This approach caused conflicts that gave way to the crcation of special
resguardos that have their own political and social organisation.
During the nventieth ccntury, many changes occurred in relation to
indigenous property rights over lands. Initially, lhe collective ownership of
indigenous lands was recognised with the prohibition of sale, mortgage,
division or prescription. Policies varied across Latin America. Around the
1940s, there was a growing concero about the marginalisation of indigenous
people, which 1ed to lhe development of policies of integration. During lhe
1950s to 1970s, many Latin American countries enacted agrarian reforms to
promote better managerncnt ofthe lands. In sorne cases, indigenous peoples
received lands that were not suited to agriculture, leading to poverty. In the
lowlands, colonisation increased through farrning and larger commercial
cnterprises, which produced a need to regularise the lands. Brazil
promulgated the Indian Statutc in 1973, in which thc dcrnarcation of
indigenous lands was stipulated, with a period of five years to carry out this
task. During this period, the titling of the Amazonian lands was initiated.
Peru recognised the inalienable collective ownership of the Amazonian
Indians over their lands in 1974 through its Native Communities Act. In
Colombia, titling startcd in the 1980s and, in Ecuador and Bolivia, in the
Qne issuc that has affected the regularisation of lands is the concept of
property with a social function that irnposes limitations on thc type of
development undertakcn. Within this context states are empowered to decide
which econornic activity is the one that will have precedence in the use of
land. The use is left to market forces. Plant and Hvalkofindicate the followi.ng
approaches in indigenous land tenure:
The protective approach, which is based on the indigenous right to be
protected against extraneous impacts and market forces - within this
approach, the majority of Latin American legislation stipulates that
indigenous lands are inalienable, imprescriptible and not subject t
The rights-based approach, which recognises the indigenous ownership
over the land and its resources within a multicultural state - this approach
is in line with the recognition of the traditional ownership of the lands
before thc conquest, the native title to land. It is comparable to the
Australian approach, in which, as a part of the reconciliation for past
injustices, indigenous rights to the lands are recognised and affirmed.
The environmentally or ecologically determined approach, which states
the special capacity of indigenous cornmunities to Uveand develop lands
located in ecologically sensitive areas - this approach cmphasiscs the fact










that rom time immemorial indigenous cornmunities have becn living in

ecologically sensitive areas without causing advcrse impacts. Indigcnous
peoples generally use the Iand with the intention o prcscrving it for future
generations. Perhaps they have a better idea oC sustainable development
than Westcrn societies.
The recent trend in Latin America is for the recognition and affirmation of
indigenous rights. It has becn pointed out that 'a new Latin American
Constitutionalism firrnly recognises an increasing number ofLatin American
republics as multiethnic and multicultural societies and often provides special
protection for indigenous lands and resources,.66 During the last decade,
Argentina, Bolivia, Brazil, Colombia, Ecuador, Guatemala, Mexico,
Nicaragua, Panarna, Paraguay and Peru have recogoised the rights o
iodigenous cornmunities in their nationa! constitutions. Countries such as
Argentina and Chile also enacted new national laws specifically related to
indigenous cornrnunities.67
The Colombian legislation providing for recognition ofindigenous rights
and the rnanagcment o traditional Iands is considered to be one of the
most advanced in Latin Arnerica. Befare any mineral dcvelopment
cornmences in traditional lands there, indigenous cornmunities rnust be
consulted. The Colombian Constitution of 1991, io its Title 1- Fundamental
PrincipIes, reaffirms that the state is a Unitary Republic, decentralised, with
territorial entities that are autonomous, dernocratic, participative and
pluralist It providesfor the recogoition and protection of ethnic and cultural

66 Id.
67 A M Craio, lruligmousLand&gularizatitm
in Latn Amt"7'ca.atNauve Web, www.nauveweb.org.
Rodolfo Stavenhagen, the Special Rapporteur 00 the situation oC human rights aod
fundamental freedoms o indigenous people, Mission to Chile, stated io the executive
summary ofhis report 'In 1993, Chile adopted the Indigenous Peoples Act (Act No 19,253).
in which the State recognizes indigenous people as .the descendants ofhuman groups that
have existed in nacional territory since pre-Colombian times and that have preserved their
own forros of cthnic and cultural expression, the land being the principal foundation oi
their existence and culture". The main indigenous elhnic groups in Chile are listed as the
Mapuche, Aymara. Rapa Nui or Pascuense, Atacameo, Quechua, Colla, Kawashkar or
Alacaluf, aod Ymana or Yagn. Indigenous peoples io Chile currently represent about
700,000 persons, or 4.6 per cent oC the population. Despite the efforts made since the
country's retorn to democracy. the indigcnous population eontinues to be largely ignored
and excluded from public life as a result of a long history of denial, social and cconomic
exclusion and discrimination
by the m~arity in society. Chile has still nat undertaken constitutional reform in this arca and has not yet ratified the Indigenous and
Tribal Peoples Convention (No 169) of the International Labour Organization (ILO)':
E/CN .4/2004/80/
333d 149685. 1198b, 1256<5bOO39fbO I!$FI LE! G031 7091. pdf.





diversity. The Constitution recognises the resg;uardos as territorial entities

with equal rights to those of other territorial entities.68
Colombia has gone so far as to regulate mining activities 'Within terrains
belonging to indigenous cornmunities. The Mining Code of2001 contains
special norros for the exploration and exploitation o mineral resources in
indigenous lands. The code stipulates the obligation of mining titleholders
to carry out their activities in such a way that they do not cause adverse
impacts on ethnic groups located in the areas of the concession. It also
contemplates the follo'Wing:
the obligation o the mining authority to delimit the mining arcas inside
indigenous tcrritories;
the obligation to consult with indigenous communities before the initiation
of any prospecting or exploration activity:
indigenous cornmunities' preference for the granting o mining titles over
third parties;
concessions granted to the indigcnous community as a whole, not
individual members;
aban against mining activity in tCHaio considcred by the indigenous
authorities as sacred or with special social, cultural or economic
significan ce; and
royalties and omer income generated by the mining activity in indigenous
lands directed to infrastructurc and services that benefit indigenous
The new Ecuadorian Political Constitution of 1998 has sorne similarity to
the Colombian one. Artide 1 states that Ecuador is a multicultural and multiemnic state. It reaffirms in Artide 83 that indigenous communities are part
of the Ecuadorian State. It also enurncrates in a comprchensive way the
special rights of these cornmunities in relation to their identity, traditions,
native title, conservation ofbiodiversity, intellectual property, administration
of cultural heritage, conservation oflanguages and protection of sacred sites,
as well as animals, plants, minerals and ecosystems that are spedal frOIDthe
traditional point o view. Indigenous cornmunities must participate in
dcdsion-making related to the management and development of their lands
and resources. Similar to the Colombian provisions, the Ecuadorian
Constitution establishes that indigenous and Afro-Ecuadorian communities
will exist as independent administrative entities. Ecuador has not escaped
the indigenous uprising on a national scale. Quito was rccently invaded by

68 Colombian National Constitution,

Art 285, states: 'Son entidades territoriales
departamentos, los distritos, los municipios y los territorios indgenas' (emphasis added).
69 Colombian Mining Code, Law 685, 15 Augusl 2001.





Vol 23 No 4 2005

more than 10,000 indigenous pcople determined to be heard by the

governmenl. Sorne of their petitions were resolved positiveIy after violent
conflicts between the military and the indigenous population. As a result, a
23-point agreement was signed between the government and indigenous
The Bolivian Political Constitution al so recognises the state as
'multicultural and multi-ethnic'. Artide 171 recognises indigenous ownership
over the collective lands tierras communitarias de migen and guarantees the
sustainab1c use and development of natural resources. 1t also recognises
indigenous cornmunities as legal entities. According to the International
Work Group for Indigenous Affairs (IWGIA), however:
'During the year 2000, peasants and indigenous peoples realised that
policies with regard to land distribution and natural
resources in practice denied them the territorial rights they had
obtaincd over the previous decade through constitutional and legal
reforms. In a context charactensed by a diminution of their rights, the
only alternative has been mobilisation by the people in order to generate
spaces for negotiation with government agents through such action'
Argentina is the homeland of about 50,000 indigenous people, located from
Kollas in the Andean north-west to Guaranis and Tobas in the nortb-eastern
lowlands and to Onas in tbe south of Tierra del Fuego. The Argentinian
Constitution of 1994, ArticIe 75,70 rccognises thc pre-existcnce of indigenous
cornmunities. lt promises to guarantee indigenous rights to education, selfdetermination,
of traditional lands and participation
decision-making concerning the development of indigenous lands. It also
guarantecs the possession and coHectivc property of the traditionallands,
which cannot be sold, transferred, mortgaged or subject to liens. The participation of indigenous peoples is assured in aH matters that can affect them.
Owing to the Argentinian federal systcm, the implementation
of national

70 Arlicle 75 of the Argenlinian Constitulion states that it is the duty oE the Congress 'to
acknowledge the ethnic and cultural pre-existencc ofthe Argenlinean indigcnous peoples.
To guarantee lhe respect for tbeir identity and the right to a bilingual and intercultural
education; to acknowledge the legal incumbellCY of their communities and the community
possession and ownership of the lands that they traditionally occupy; and lo regulate the
conveyance oE their lands fit and sufficient to human devclopment; none of them will be
alienable, assignable or liable to bcing subjcct to liens or attachments. To ensure thcir
participation in the management of their natural resources and other interests that may
affect them. The provinccs may currently exercise these capabilities': in F Hercdia, 'The
Applicable Law to Indigcnous communities in Argentina and its Relation to the Mining
Activity', paper prescnted at thc Internalional Bar Association, Seclion ofEnergy & Natural
Rcsources Law, San Francisco Conference, April 2004.





laws pertaining to the indigenous communities' lands rights and their

management is confused, since sorne laws at the provinciallevel are contrary
to national ones. This simation has led to conflicts in the northwest on account
of delays in thc regularisation oftraditional lands. RecentJy, the Lhaka Honhat
Association oflndigenous Communities presented a complaint to the InterAmerican Cornmission on Human Rights against the Argentinian state,
relating t a lack of environrnental impact assessrnents and in pursuance of
the regularisation of their traditionallands in the Salta Chaco.71
The Peruvian Constitution of 1993 follows a similar pattern to the
constitutions just described. It establishes that everyone has tbe right to his
or her ethnic and cultural identity. It also recognises and protects Peruvians'
ethnic and cultural plurality. The Constitution reaffirms the right of the
Peruvian people to use their native languagc. It recognises indigenous
cornmunities as artificial persons and therefore as having legal capacity. In
relation to the owncrship of lands, the new Peruvian Constitution deviated
from the previous approach, stipulating that property can be particular,
collective or in another associate formo Within the new prescriptions the
indigenous lands are transferable and mortgageable. Indigenous pcople are
free to dispose of their lands.
Neverthcless, despite the wider constitutionaI'2 and legal recognition in
Latin America of indigenous rights, including the right to management of
there still exists scope for conflict. As indicated aboye, the
owncrship of minerals in these countries is generalIy vestcd in the states.
This has generated problems in traditional lands subjected to concessions
to carry out mineral prospecting or exploration activities. Normal1y, the
conflict is betwccn the indigenous communities and the mining companies,
ignoring tbe fact that the problem also rests with the governrnents, which
lack policies for the management of these lands or the infrastructure t
implement laws and regulations or monitor compliance. In this respect, ILO
Convention 169 stipulates in Article 15(2) ":
71 For the complete Amici Curiae Association o/ Lhaka Hrmhat Aboriginal Communilu.s (N1UStra
Tierra/OuT Land) v Tk State o/ A-rgmtina presented by the Center for Human Rights and
(CEDHA) and the Center for International
Environmental Law (CIEL) , at
72 For the text of the Latin American Constitutions see Georgetown University Center for
Lalin Studies, Base de Datos Politicos de las Americas, at http://georgctown.edu/pdba/
Constitulions/ .
73 ILO Convention No 169 has been ratified by 17 countries: Argentina (3 July 2000), Bolivia
(11 December 1991), Brazil (25 July 2002), Colombia (7 August 1991), Costa Rica (2 April
1993), Denmark (22 February 1996), Dominica (25June 2002). Ecuador (15 May 1998),
Fiji (3 March 1998), GuatemaJa (5 June 1996), Honduras (28 March 1995), Mexico (5
September 1990), Netherlands (2 Febroary 1998). Norway (19Junc 1990), Paraguay (10
August 1993), Pero (2 February 1994) and Venezuela (23 May 2002).










4 2005

'In cases in which the stale retains the ownership of mineral or

subsurface resalirces or rights to other resalirces pertaining to lands,
governments shall establish or maintain procedures through which they
shall consult these peoples, with a view lo asccrtaining whether and to
what degree their interests would be prejudiced, befare undertaking
or permitting any prograrnmes ror the exploratian or exploitation of
such resalirces pertaining la their lands. The peoples con cerned shall
wherever possible participate in the benefits of such activities, and shall
Tcccive fair compensation ror any darnagcs they may sustain as a result
of such activities.'
Despile the willingness of sorne mining campanies to carry out their activities
in tine with international standards that are conducive to sustainable
development, conflicts stiB arise since in many cases there is no coherent
legislation on aH the different issues that arise. There is a lack of proper
information about policies and institutions relevant to mining activities. The
maio tool to avoid future problems is public consultation with the indigenous
communities in which they must be empowered to participate in the
management of their lands and in the decision-making process to carry out
a particular project.
Another issue that has proved important in the granting of tides of
indigenous land is the method of demarcation, since sorne countries are
stiU using manual rnethods, which are not the most reHable solution. The
most modero rncthod, and the one that wiIl avoid confusion, is the satellite
Global Positioning System. Since indigenous communities have the best
knowledge of the delimitation of their traditionallands, they have played an
important role in demarcation and titling processes. Examples of this are
found in Peru and Ecuador, where cornmunities participated actively in the
titling, demarcation and mapping of their terruns. The participation of the
indigenous cornmuniries during these proeesses is of vital importan ce, since
it contributes to the understanding of the indigenous system of land
In conclusion, countries in Latin Amcriea, which have a considerable
proportion of indigenous peoples, are in the process of regularising their
rights, including those related to traditionallands. This goal will be achieved
with the willingness and cooperarion of the two other main stakeholdersthe state and the mining companies. The big mining companies are already
implementing consultation with, and the participation of, the communities
that could be affected by their projects prior to their initiation.






Final considerations
With economic globalisation and the liberalisation of markets, aH the
countries endowed with mineral resources are competing to attract private
investment. They see the development of their natural resourccs as the key
to the growth of their economies. Countries with indigenous eommunities
are in the internationallirnelight beeause of global awareness of the need to
protect indigcnous right..;.Therefore in the delineation of their policies,
these countries must take into account the need to address the protection
of those indigenous rights that have already received recognition in the
international arena. Also, governments must offer systems through which
their laws can be implemented.
Arguably, the treatrnent of indigenous rights issues in Australia, which
until recently denied indigenous participation in the development of the
nationls natural resources on ajust and equitable ba~is, was the lcastjust of
the three British colonial systems analysed. This is a contemporary issue in
Australia and much remains to be done to achieve a fair solution. The
recognition and protection of indigenous rights are not enshrined in the
Constitution and therefore depend generally on coromon law. The eonflict
of interests between Aboriginal rights and the developrnent of natural
resources must be addressed as a matter of urgency. This issue has already
had a negative impact on the mineral industry during a vulnerable phasc of
low prices in metal commodity markets, rcsulting in a downgrading of
Australia's perceived attractiveness for exploration and an outflow of funds
to more competitive countries.
The Treaty of Waitangi in New Zealand in 1840 was hailed as a virtuous
rnodel agreement ahead of its time, as it safeguarded the interests of
indigenous peoples, upholding their equality with the European settlers.
However, a confliet related to its interpretation stiB exists, leaving the
recognition of the rights of indigenous peoples in the hands of the courts.
In Canada, where the rights of indigenous peoples were largely protected
from an early stage in the country's colonial history, the courts have provided
a successful mechanism through which indigenous pcople have secured their
rights. Furthermore, these rights and the treaties' principies are enshrined
in the Constitution, and modern land agreements have provcd to be a
workable system because they recognise and implement rights. Neverthelcss,
vast terrains in Canada are still subject to native title claims because their
indigenous owners never signed a treaty. Therefore, a more rapid strategy is
needed to fast track the settlement of conflicts arising in relation to the
development of natural resources locatcd in these territories.
In Latin America, the issue is not the recognition of indigenous rights,
which have been enshrined recently within the constitutions of sorne




REsoURCESLAw Vol 23 No 4 2005




countries, but the provision of straightforward regulations to implement

nationallaws. Also, in countries with two-tier systems, such as Argentina and
Brazil, coherence and consistency between central and provinciallaws must
be achieved in arder to avoid crroneous interpretations that lead to social
In the delineation of mining policies related to land use, countries with
indigenous cornmunities should tale ioto account the following. among other
the customary laws of these cornmunities, in which an equitable balance
must.be found, allmving for the etbnic diversity of the cornmunities involved;
the distribution of the wealth gener~tcd by the ,mining activities within
the cornmunitics concernedj
training by governments, in conjunction with mining companies, offered
to indigenous peoples and compatible with their new activities, which wiIl
generate social capital that will compensate for eventual mine cIosurc and
wiIl prevent the need for re1ocation ofthese communities within unfamiliar
cIcar dclimitation

of indigcnous

land daims;

transparent procedures for indigenous land regularisation; and

the establishment
of administrative
rules and proccdures related
information sharing and consultation.


Thc best way to resolve conflicts arising during the devclopment of natural
resources, especially in the mineral sector, could be the signing of specific,
between governments,
indigcnous peoples who have interests in a particular project. This type of
special agreement will encapsulate all the rules that deal with the use of
land, environmental protection, employrnent, taxation, and so on, while
establishing aH lbe obligations and rights of lbe parties involved. With lbese
agreements in place, aH parries wiIl have securityin arcas ofpotential conflicto
The government and the indigenous communities will know that the invcstors
will comply with thcir obligations, whilc the investors will know that a contract
will havc the nccessary stability. The most important point is that the country
will maintain its international image, because these agreements will reflect
an equilibrium that harmonises the interests oC the states, the developers or
investors, and the indigenous peoples as traditional owners of the lands.
Any negotiation between stakeholders must be conducted within an
of authentic goodwill, mutual respect and readiness to
compromisc intcrests. This negotiation
must have as a final goal the
achievement of fair, just and equitable agreements that can be of mutual
lasting benefit and can avoid the costs and delays associated with Jongjudicial
proccsses while promoting sustainable development.

Canadian Aboriginal Law:

Creating Certainty in
Resource Development *
By Thomas Isaac and Anthony Knoxt
This paper discusses legal developments

relating to the relationship


Canadian governments and Canada's Aboriginal peoples regardmg certamty

of access to natural resources. Canadian Aborigina/ /aw has undergone a
complete evolution in the 23 years since Canada's Co~s:itution was am~nde~
to recognise the then vague concept of 'existing Abortgmal and t~eaty ng~~ .
What is notable is the influence of the common law and Canadlan admmlstrative law in developing the new doctrines of the Crown~ duty to consu/t

where appropriate,



peoples. The honour


the' Crown and reconciliation have moved Canadian Aborigina/ law from a
comfortless uncertainty to a legal certainty in which Canadian governments
continue to manage natural resources, but do so subject to fair treatment of


This articlc was originalIy publishcd in (2003) 53 UNB Law J3, This version rcpr,cscn,ts th~
third edition ofthe paper first prescntedat thejoint meeting ofthe Rocky Mountam Ml~era
La F
d U. and the Section on Energy & Natural Resources Law of the lnternauon~
W oun a on
' ,
t t It
Bar Association held in Lima, Pero in April 2003. Along with sorne ot er revlSIons o ex
conlains new refcrences to several decisions rendered since April 2003, changes the or er
ss'oo of the Crown's fiduciary duty and impact and benefit agrccmcnts and a~ds a
o lseu I
, , al 'u
slightly editcd vcrsion of the passage 00 the relationship between Abongtn u e an pn.
. Thomas 1saac, A"~'
(IU"gma,lI.aw' Commen'''"'"'''
~',1> CasesandMate11als,
~rd edn (Saskatoon Purich, 2004), pp 14-18, The second edition was presented at, aJo~nt
, San F'ranClSCO,USA' In April 2004, ThlS thlrd
meeting of the same, orgamsatlons
held In
edition is the same as the sccond edlUon
except th at a num ber of foolnotes have
, . beeo

su lemented or added in order to annotate the text in light ,of th~ l.andmark declslOIlSof
th~~upreme Court ofCanada in HaidaNatm v British Columbia (Mmu!? ojFrn:ests)[2004] 3
SCR 511 ('Haida') and Taku River Tlingit First Nation v British Columbia (Project Assm:;~
Director) [2004] 3 SCR 550 (' Taku'), which were pronounced by the Supreme Coml ofCan

in November 2004.
b) b th
Thomas Isaac BA, MA, LLB,l.l...M and Anthony Knox BA (Hon) , LLB, PhD (Canta 'dob
of McCarthy Ttrault l.l...P,Vancouver, British Columbia. The authors can be contacte
e-mail attknox@mccarthy.caandtisaac@mccarthy.ca.