36 Chapter 4 | LEGAL FRAMEWORK OF INDIGENOUS PEOPLES’ RIGHTS TO LAND CHAPTER 4 LEGAL FRAMEWORK OF INDIGENOUS PEOPLES’ RIGHTS TO LAND 4.1 This Chapter examines the legal instruments and legislation that deal with the rights of indigenous peoples to their lands and territories. It looks first at international instruments that prescribe the rights of indigenous peoples, followed by domestic laws and legislation on native and aboriginal rights to lands. SOURCES OF INTERNATIONAL LAW ON INDIGENOUS PEOPLES’ RIGHTS TO LANDS, TERRITORIES AND RESOURCES AND THEIR AUTHORITY 4.2 International law and standards on indigenous peoples’ rights to lands, territories and resources are found in a myriad of international, regional and domestic instruments, decisions and policies. These include the UN Declaration on the Rights of Indigenous Peoples (UNDRIP); international human rights treaties; ILO Convention No 169; regional human rights treaties such as the Inter-American Convention on Human Rights and the African Convention on Human and People’s Rights; and interpretations of international law by authoritative bodies such as courts, commissions and UN human rights treaty bodies. 4.3 Provisions of international human rights treaties such as the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC) ratified by Malaysia are directly relevant. 4.4 International law on the rights of indigenous peoples has explicitly and implicitly recognised the importance of their lands, territories and resources to indigenous peoples, especially their cultures.58 Contemporary international law on indigenous peoples’ rights to their lands, territories and resources is developing in the direction that indigenous peoples have the right to their traditional lands held under their own indigenous laws and customs. Article 26(3) of the UNDRIP requires that States give legal recognition and protection to these lands, territories and resources. 4.5 Recognition of indigenous peoples’ rights to their traditional lands, territories and resources is required by an interpretation of the fundamental principle of non-discrimination and also the right to property, especially when both are read together.59 4.6 When there are competing claims to lands, indigenous peoples’ rights are often not given due recognition. Article 27 of the UNDRIP requires that States establish processes to adjudicate disputes over indigenous peoples’ lands, territories and resources, including those traditionally owned, occupied and used. Moreover, the right to redress in Article 28 of the Declaration covers lands, territories and resources “which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.” 4.7 Free, Prior and Informed Consent (FPIC) is one of the key principles in relation to indigenous peoples’ rights to their lands, territories and resources. The duty of States to obtain, or in 58 J Martinez Cobo “Study of the Problem of Discrimination against Indigenous Populations”. 59 Awas Tingni and Committee on the Elimination of Racial Discrimination UN Doc. CERD/C/NIC/CO/14 of 19 June 2008. chapter 4_a4.indd 36 7/5/13 6:46 PM