'Land and Property: Indigenous Human Rights in the Ogiek decision by the African Court on Human & Peoples’ Rights'

'Land and Property: Indigenous Human Rights in the Ogiek decision by the African Court on Human & Peoples’ Rights'

In 2017, the African Court on Human & Peoples’ Rights delivered its judgment in African Commission on Human and Peoples’ Rights v Republic of Kenya(1) (‘Ogiek decision’), a case brought on behalf of the Ogiek people against Kenya. The Ogiek are an Indigenous ethnic minority community living on forest land from which the Kenyan Forestry Service sought to evict them. The Ogiek community claimed that the forest was important for their traditional livelihoods, social and economic survival.(2)

The African Court has jurisdiction over alleged violations of human rights protected under the African Charter on Human and Peoples’ Rights(3) or other human rights instruments ratified by respondent States. In its Ogiek decision, the African Court determined that Kenya had violated human rights and other provisions in the African Charter on Human and Peoples’ Rights, including the right to property.(4)

This paper proposes to present the Court’s analysis of the right to property under the African Charter and this right’s interaction with rights to cultural life and economic, social and cultural development. The paper also considers whether international treaty provisions and decisions such as Ogiek may guide the interpretation of the right to property under the Human Rights Act 2019 (Qld).(5) Could the Queensland right to property be available to protect Indigenous peoples’ rights to traditional lands and natural resources, especially where lands are vulnerable to development and environmental degradation by government and private entities?

The paper also proposes to explain one significant feature of the Ogiek decision: the African Court’s application of the free, prior and informed consent principle in the United Nations Declaration on the Rights of Indigenous Peoples. This principle has been applied in other international decisions, and may mean that governments must do more than simply discuss their plans for land development or acquisition with Indigenous peoples.(6)

Notes:
(1) African Commission on Human and Peoples’ Rights v Republic of Kenya, Application No 006/2012 (26 May 2017).
(2) African Commission on Human and Peoples’ Rights v Republic of Kenya, Application No 006/2012 (26 May 2017) [3]-[8].
(3) African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 1520 UNTS 218 (entered into force 21 October 1986).
(4) African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 1520 UNTS 218 (entered into force 21 October 1986) Article 14.
(5) Human Rights Act 2019 (Qld) s 24; s 48(3) of the Human Rights Act 2019 (Qld) allows courts and tribunals to consider international law and cases when they interpret statutory provisions in a way that is compatible with human rights.
(6) United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/Res/61/295 (13 September 2007) Article 10; see also Articles 11(2), 28(1) and 32(2).