Legal Pluralism, Indigenous Peoples Rights and Issues of Evidence

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Legal Pluralism, Indigenous Peoples Rights and
Issues of Evidence

• Martin Scheinin
• Åbo Akademi University
• Institute for Human Rights

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UN Declaration on the Rights of Indigenous
Peoples, Article 27

• States shall establish and implement, in
  conjunction with indigenous peoples concerned, a
  fair, independent, impartial, open and
  transparent process, giving due recognition to
  indigenous peoples laws, traditions, customs and
  land tenure systems, to recognize and adjudicate
  the rights of indigenous peoples pertaining to
  their lands, territories and resources, including
  those which were traditionally owned or otherwise
  occupied or used. Indigenous peoples shall have
  the right to participate in this process.
• Right to oral traditions, articles 13 and 31

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ILO Convention No. 169, article 14

• The rights of ownership and possession of the
  peoples concerned over the lands which they
  traditionally occupy shall be recognised. In
  addition, measures shall be taken in appropriate
  cases to safeguard the right of the peoples
  concerned to use lands not exclusively occupied
  by them, but to which they have traditionally had
  access for their subsistence and traditional
  activities. Particular attention shall be paid to
  the situation of nomadic peoples and shifting
  cultivators in this respect.
• Governments shall take steps as necessary to
  identify the lands which the peoples concerned
  traditionally occupy, and to guarantee effective
  protection of their rights of ownership and
  possession.
• Adequate procedures shall be established within
  the national legal system to resolve land claims
  by the peoples concerned.

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Draft Nordic Saami Rights Convention

• Land rights provisions in line with ILO
  Convention 169, largely boiling down to a
  procedural obligation for the States
• Art. 34 para 3 Assessment of whether traditional
  use exists pursuant to this provision shall be
  made on the basis of what constitutes traditional
  Saami use of land and water and bear in mind that
  Saami land and water usage often does not leave
  permanent traces in the environment.