Aboriginal title, indigenous rights and the right to culture

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South African Journal on Human Rights

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University of Cape Town

The doctrine of aboriginal title has been the subject of considerable academic commentary in South Africa in the past few years. The generaltenor of this commentary has been approving of the doctrine. Proponents of the doctrine are of the view that it provides a means for communities to obtain ownership of land when they are not able to do so through the Restitution of Land Rights Act 22 of 1994. This article questions whether the doctrine really is of value for South African communities. On the one hand, it is suggested that few communities, if any, would meet the doctrine’s rigorous requirements. More significantly, it is suggested that the doctrine, in its parent jurisdictions, does not operate to restore land to dispossessed communities. It recognises only that aboriginal communities currently in occupation of land have rights in and to the land. It is in this regard that the doctrine’s application in South Africa is most problematic. The terms ‘aboriginal’ and ‘indigenous’ are used interchangeably under comparative and international law. Although there is standard definition of ‘indigenous’, under the suggested definition that has been most widely accepted, it is not clear that the black African majority in South Africa would constitute ‘indigenous’ peoples, in the sense of constituting distinct rights bearers. A broad definition of ‘indigenous’ that would include black African communities is not consistent with the purpose that the recognition of indigenous rights seeks to achieve. A narrow definition of ‘indigenous’ that includes only the descendants of Khoesan peoples is likely to prove highly contentious, and may undermine the spirit of national unity and reconciliation that the Constitution seeks to achieve. An approach that avoids the need to identify communities as indigenous for the purpose of claiming rights in and to land is therefore to be preferred. It is suggested that the constitutional right to culture provides an alternative, since the link between aboriginal title and the protection of culture is clearly drawn in Canadian and Australian cases.