ABSTRACT
Indigenous land rights are not merely a sub-category of indigenous rights under international law. Rather, they are the cornerstone of indigenous wellbeing because of the inextricable connection between the indigenous psyche with its ancestral land. This chapter explores the historical roots of indigenous land rights and claims from the time of the early colonisers to the present day. It seeks to assess the current position in international law on the most acceptable form of legal title over land. This is by no means an easy task because indigenous land tenure is recognised through a variety of forms throughout the world and this fact alone renders the reaching of any definitive conclusions next to impossible. I have relied on positive sources, particularly state practice as this is reflected through domestic laws and judicial pronouncements and have generally refrained from giving legal credence to state practice that violates its own laws and regulations. In order to make this study as representative as possible I have drawn from laws and practices in developed and developing countries as well as from nations in the Americas, Asia, Africa and Australia. Hopefully, as a result of this exercise the reader will be in a better position to ascertain whether the various international instruments dealing with indigenous land rights reflect the current state of play or whether in fact they are more progressive than that actual law on-the-ground. In a study of this nature I have been mindful of focusing on my particular subject matter and I have thus refrained from assessing indigenous rights in general. It is assumed that the reader possesses at least a basic understanding of the topic.1
