Indigenous People

The Supreme Court of India declined to get involved in a petition against damming the Narmada River. In so doing, the Court noted that a lengthy decision-making process had been behind the damming, and that the Court should not try to second-guess something which had been given such great consideration already. Thus, the Court essentially gave the go-ahead for the displacement of indigenous and tribal populations which were in the path of the damming. In its decision, the Court took into consideration the Indigenous and Tribal Peoples Convention of 1957, the ILO Convention No. 107, and principles of international environmental law.

Secretary of State for Justice v Chan Wah & Ors, [2000]

Two people who had lived in the villages of the New Territories of Hong Kong all their lives could not prove that their ancestors had been in Hong Kong since before 1898. Such proof was necessary for them to be considered members of the indigenous community. Since this could not be proved, the two either could not vote and/or could not stand as candidates in certain elections, even though the relevant law had been amended in 1988 to rectify this shortcoming. There were also sex discrimination issues present, as the relevant law especially disfavored women. The Court of Final Appeal cited the ICCPR and held that these civic restrictions were not reasonable, and therefore inconsistent with the Bill of Rights.

“The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights . . . brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.”

(found in Toward Implementing Universal Human Rights: Festschrift for the Twenty-Fifth Anniversary of the Human Rights Committee, ed. Nisuke Ando, p 253)

For further cases, see Shane S. Monks, In Defence of the Use of Public International Law by Australian Courts, 22 Australian Yearbook of International Law pp. 201-226 (2003).

The High Court of Australia dismissed the concept of terra nullius (where unoccupied land can be taken by occupation). Though it could be legally extinguished by government authorities, the concept of Native Title (a right to land by indigenous peoples because of their use of such land before the arrival of Europeans in Australia) operates in concert with the sovereign title of the British Crown. This protected the ability of indigenous peoples in Australia to use their land the way they saw fit, including by using a legal system distinct from the Australian one. In making its decision, the High Court noted that terra nullius was not in line with contemporary human rights standards.