Part I The United Nations Declaration on the Rights of Indigenous Peoples: Background, content and implementation 2. THE RIGHTS OF INDIGENOUS PEOPLES TO THEIR LANDS, RESOURCES AND TERRITORIES What constitutes the lands, resources or territory of a particular indigenous people will depend on the specific circumstances of the community in question. The Declaration recognizes indigenous peoples’ rights to their lands, territories and resources, including rights to those lands, territories and resources traditionally held by indigenous peoples but now controlled by others as a matter of fact and also law. The Declaration provides broad recognition of the rights of indigenous peoples to land, territories and natural resources, including: • The right to strengthen their distinctive spiritual relations with lands and resources (article 25) • The right to own, use, develop and control the lands, territories and resources that indigenous peoples possess by reason of traditional ownership (article 26) • The right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent (article 28) • The right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources (article 29) • The right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources (article 32) The Declaration requires States to take measures to uphold and promote the rights of indigenous peoples relating to lands, territories and resources, such as imposing restrictions on the storage or disposal of hazardous materials in the lands or territories of indigenous peoples (article 29) and placing restrictions on the use of lands and territories of indigenous peoples for military activities (article 30). The Inter-American human rights system has a highly developed body of jurisprudence regarding indigenous peoples’ rights to lands and resources. It has decided on indigenous land possession in a number of cases. For instance, the Court pointed out that possession of the land should suffice for indigenous communities lacking real title to property of the land to obtain official recognition of that property, and for consequent registration.142 The African Commission on Peoples’ and Human Rights has confirmed that indigenous peoples hold property rights to the lands and natural resources they traditionally used. In the view of the African Commission in the Endorois case, the following conclusions can be drawn: (1) Traditional possession of land by indigenous people has the equivalent effect as that of a stategranted full property title; (2) Traditional possession entitles indigenous people to demand official recognition and registration of property title; (3) The members of indigenous peoples who have unwillingly left their traditional lands, or lost possession thereof, maintain property rights thereto, even though they lack legal title, unless the lands have been lawfully transferred to third parties in good faith; and (4) The members of indigenous peoples who have unwillingly lost possession of their lands, when those lands have been lawfully transferred to innocent third parties, are entitled to restitution thereof or to obtain other lands of equal extension and quality. Consequently, possession is not a requisite condition for the existence of indigenous land restitution rights.143 142 Mayagna (Sumo) Awas Tingni Community v Nicaragua, Inter-American Court of Human Rights, Judgment of 31 August 2001, Series C N0. 66, para. 151. 143 Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, African Commission on Human and People’s Rights, 276/2003 (4 February 2010), para. 209. Chapter 4: The content of the Declaration: Lands, territories and resources; development with identity; and redress and compensation | 33