Land Rights and the Forest Peoples of Africa

Land rights and the forest peoples of Africa – Part II
regime, they might also survive it. However, in the words of John Westlake, a prominent
19th-century legal scholar: it is not the case that ‘all rights are denied to such natives, but …
the appreciation of their rights is left to the conscience of the state within whose recognised
territorial sovereignty they are comprised …’ 9 Recognition of pre-existing land rights was
solely at the discretion of the colonial power. Lindley, in his seminal work on the acquisition
of territory, also highlighted the distinction made by the colonial states between the
recognition of ‘civilised’ and ‘uncivilised’ pre-existing rights, with states rejecting the notion
of ‘uncivilised’ rights to land such as customary indigenous peoples’ laws. 10 None the less,
despite the power of the colonial state to recognise pre-existing rights or not, the rule still
potentially provides indigenous peoples with grounds for claiming recognition of their rights
to land.
Going back to the colonial rules governing the recognition of pre-existing rights shows that,
when a conquest was made, two approaches to the effect of the acquisition of territory on preexisting
rights to land of the inhabitants were possible. The first was based on the doctrine of
continuity, which favoured the continuation of pre-existing land rights, the idea being that the
transfer of sovereignty did not adversely affect these rights unless there was an express
legislative intent to do so. The second approach was based on the doctrine of recognition. This
doctrine affirmed that rights to land had to be formally recognised by the new power;
annexation otherwise resulted in the abolition of all pre-existing rights. 11 This distinction has
important consequences for contemporary land claims, as some national courts (especially
under the common law) have started to examine what pre-existing rights ‘survived’ the
colonial rules. 12 The question as to whether pre-existing indigenous legal rights survived
colonisation or were dependent upon recognition was only settled recently in favour of the
continuing legality of indigenous peoples’ rights in common law countries. 13 In Africa, where
colonial powers did not usually make clear statements specifically abolishing ‘pre-existing’
land rights, such rights could potentially have ‘survived’ the colonial legacy. Some courts have
started to examine the extent to which indigenous peoples’ ‘pre-existing’ laws could have
survived colonisation, and what their impact could be in contemporary land claims. The
Richtersveld decision of the Supreme Court of South Africa provides a recent illustration of
such judicial review. 14 While most of these cases are dealing with national laws, they are none
the less based on the international legal principle of the recognition of pre-existing rights,
which was affirmed under the Final Act of the Berlin Conference.
Another long-lasting consequence of the colonial era and its classification of societies in a
scale of ‘civilisation’ is the perception of nomadic societies. Under the tenets of international
9
John Westlake (1894) Chapters on the Principles of International Law, Cambridge, University Press, p 136.
10
M F Lindley (1926) The Acquisition and Government of Backward Territory in International Law,
Longmans, Green and Co., New York; reprinted New York, Negro Universities Press, 1969.
11
See, for example, Vajesingji Joravarsingji v. Secretary of State for India (1924), LR 51 Ind App 357.
12
See Jérémie Gilbert (2007) ‘Historical Indigenous Peoples’ Land Claims: A Comparative and International
Approach to the Common Law Doctrine on Indigenous Title’ in International and Comparative Law
Quarterly, 56 (3), pp 538–611.
13
Kent McNeil (1989) Common Law Aboriginal Title, Clarendon, Oxford, p 196.
14
Supreme Court of Appeal of South Africa, The Richtersveld Community and Others and Alexkor Limited
and the Government of South Africa, Case No. 488/2001 (24 March 2003).
Couillard & Gilbert 31
March 2009