U.N. Declaration affirms:
Indigenous peoples have the right to own, develop, control and use the lands and territories, including the total environment of the lands, air, waters, coastal seas, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied or used. This includes the right to the full recognition of their laws, traditions and customs, land-tenure systems and institutions for the development and management of resources, and the right to effective measures by States to prevent any interference with, alienation of or encroachment upon these rights.
The people must rise up to claim their inalienable rights to knowledge.
In Worcester v. Georgia, one of the most cited domestic law judicial opinions in the world, Marshall wrote that the rights of discovery belonging to European discoverers under the European Law of Nations could not affect the property rights of the Indians of America, who were “already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man.”
The existence of the colonial state of Uganda and its marionettes does not extinguish and or affect the property rights of Baganda, Madi, Bakiga innovations and discoveries, Acoli discovery of Christianity, Itesot discovery of animal husbandry and ajon brewing (fermentation). These so called “tribes” (nations), clans and individuals were already in possession, either as aboriginal occupants or as occupants by virtue of their history and future, made before the memory of man. (bwanika)
ILO Convention No. 169 provides that “Governments shall have the responsibility for developing, with the participation of the peoples concerned, co-ordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity.” To that end, the Convention requires states to adopt special measures “as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned.”
In the context of a logging concession, for example, such positive measures might include measures in the design of the governing operational plan to prevent environmental impacts from road-building or timber harvesting that might harm indigenous peoples’ subsistence hunting and agricultural practices or interfere with access to sacred sites. Such measures might also include compensation for temporary or long-term degradation of soil or water quality. (Kampala)
Chapter 26 of Agenda 21 calls on states to adopt and give effect to the following measures, among others:
Adoption or strengthening of appropriate policies and/or legal instruments at the national level; Recognition that the lands of indigenous people and their communities should be protected from activities that are environmentally unsound or that the indigenous peoples concerned consider to be socially and culturally inappropriate;
Recognition of their values, traditional knowledge and resource management practices with a view to promoting environmentally sound and sustainable development.
The impact of government-sanctioned resource extraction activities in indigenous peoples’ traditional territories that do not conform with this requirement not only reduces the ability of the affected cultural group to maintain its own economic and social integrity, it irredeemably changes the entire economic structure of the affected region. State-imposed economic exploitation of their lands and loss of resources deprives indigenous peoples of their traditional livelihoods, forcing them to participate in a new economic regime that they do not control. In this way the cultural fabric of the indigenous group slowly unravels, instead of “enriching the fabric of society as a whole” as anticipated by the U.N. Human Rights Committee. The requirement of providing special safeguards is to protect indigenous peoples from such a fate.
Failure on the part of states to provide such demarcation and recognition of indigenous peoples’ properties and use areas results in difficult and threatening conditions for indigenous peoples. Without secure and defined land tenure, indigenous peoples invariably find their lands and habitats being encroached upon by outsiders. Indigenous peoples are then vulnerable to the practices of government officials who may regard indigenous peoples’ land as property of the state, and indigenous peoples are deprived of the ability to effectively and freely develop their lands and resources on their own terms.
A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule, which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.
A state, therefore, cannot escape international responsibility by merely referring to its domestic laws or administrative practices. Rather, it has the obligation to change its internal laws and practices to recognize indigenous peoples’ rights in relation to lands and resources and, moreover, to take affirmative steps to protect them.
The Committee notes that “[p]ositive measures of protection are . . . required not only against acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party.”
………the indigenous peoples concerned lack specific state recognition and protection of their traditional lands, and, in the absence of such recognition, unwanted natural resource exploitation or other encroachments threaten their lands. In these situations the failure to take necessary protective measures lead to a violation of rights to property, culture, and physical well-being.