The purpose of this chapter is to rewrite the Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights (CESR) v Nigeria (Ogoni) decision, taking into account recent developments with regard to indigenous peoples’ rights. In particular, this chapter focusses upon peoples’ rights and indigenous peoples’ rights in Africa; indigenous peoples’ land rights; and, indigenous peoples’ right to free, prior and informed consent (FPIC). In an effort to clarify the elements that have been added to the rewritten Ogoni decision, the chapter begins by highlighting the uniqueness of the African Charter on Human and Peoples’ Rights, which allows for the integration of international and regional legal sources in the decision-making process of the African Commission on Human and Peoples’ Rights (ACHPR). Subsequently, the growing relationship between ‘peoples’’ rights and indigenous peoples’ rights in the African context is examined, and the development of indigenous peoples’ land rights at the international and regional levels is explored. Finally, the chapter summarizes the development of FPIC at both international and regional level, a principle that is at the heart of indigenous peoples’ claims but one that has been barely touched upon by the ACHPR.
Derek Inman, Stefaan Smis and Edson ‘Krenak’ Dorneles de Andrade
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which, alongside recognising a wide range of basic human and fundamental freedoms for indigenous peoples, devoted a number of provisions to outlining their inalienable collective right to the ownership, use, and control of lands, territories, and natural resources, confirmed the international community’s recognition that land rights are of crucial importance for indigenous peoples. While the direct participation of indigenous groups in the negotiation process offers a high level of legitimacy to the issues raised in the UNDRIP what such participation should also offer is a users’ perspective on such issues. However, is this the case? Prior to, and since the adoption of, the UNDRIP, indigenous peoples’ land rights have been a matter of concern at a number of international human rights forums and regional human rights bodies in a fragmented manner. Are indigenous peoples’ perspectives adequately represented in these developments? Despite the fragmentation, are the developments inter-connected through the inclusion of the users’ perspective? This chapter will begin by analysing a users’ perspective on land and rights, which, in this case, are the Munduruku of Brazil. Next, it will outline the developments in the area of indigenous peoples’ land rights, highlighting instances where a users’ perspective is included, and determining if they reflect the users’ perspective we have teased out from our investigation into the perspectives of the Munduruku. Finally, the chapter examine recent developments where harmonization and integration seem to have replaced fragmentation, putting forth a common understanding and protection standard, all the while reflecting the desires of indigenous peoples.