This chapter explores the complexity of the relationship between Australia’s rule of law claims and its historical and contemporary treatment of First Nations. It argues that there is a constitutional legitimacy crisis within the modern Australian state, sourced in its original denial of the legal existence of First Nations of the land alongside the denial and weaponisation of the ‘rule of law’ against them. The chapter traces these two strands of rule-of-law history in the broader context of the various rule-of-law debates that persevere in the Australian legal system, and the more immediate contemporary debate as to how to ‘recognise’ First Nations in the Australian Constitution. The objectives underpinning the proposed Aboriginal and Torres Strait Islander Voice (a representative advisory body) are examined, as well as the reasons for its failure at referendum, which resonate with the claims of equality and rule of law that underpinned the Australian state’s origins, and the origins of its ongoing constitutional crisis.

Most biodiversity resources are under states’ jurisdictional control or are shared among states in a region. These biodiversity resources cannot, thus, be characterized as global common resources. The biodiversity loss that is witnessed worldwide has, however, put the protection of biodiversity on the international agenda with a new sense of urgency. The international management of national biodiversity involves attempts of the international community to globally enclose national commons. As many states do not have adequate resources to protect and manage their biodiversity resources, these resources often become open access resources and are degraded. National and transnational protected areas and international gene banks are methods that have been used to protect biodiversity resources. Other efforts include measures to curb or prohibit the trade in endangered species and the adoption of international treaties, such as the World Heritage Convention, the African Convention for the Conservation of Nature, and conventions on the protection of migratory species, seals, and whales. This chapter emphasizes that local and global efforts for the protection of biodiversity should not be used as means to suppress the rights of indigenous peoples and farmers or to forcibly relocate them without their consent.

The Convention on Biological Diversity was the first convention to address biodiversity as a global common pool resource. The convention mandates the protection of biodiversity and deals simultaneously with distributive issues, that is, the allocation of benefits from the exploitation of germplasm resources. Although, “raw” germplasm resources have typically been treated as open access resources, “worked” germplasm resources are protected under various intellectual property right systems, such as breeders’ rights and patents. This disparity in the treatment of resources has prompted developing countries to assert jurisdictional control over their “raw” germplasm resources and to charge fees on persons (researchers, corporations) who wish to access such resources. This chapter analyzes the global arrangements for the sharing of benefits from the use of germplasm resources and whether such arrangements will be disrupted by the new techniques of synthetic biology and the advantages offered by the in silico conservation of germplasm resources. We further scrutinize whether the existing arrangements, or potential future configurations of benefit sharing, will have a tangible impact on the livelihoods of people of the developing world – indigenous peoples and farmers.

Chapter 1 is an introduction to the basic concepts of international law and international environmental law. It provides an overview of the actors that are involved in international policymaking, explains the international lawmaking process, and the historical evolution of international environmental law. Principles of international environmental law, such as sovereignty over natural resources, the polluter pays principle, the precautionary principle, the equitable utilization of resources, common but differentiated responsibilities, and intergenerational equity, are explored in detail.

This introductory chapter provides an overview of the land rights movement, drawing from the experience of the Yolngu peoples in northern Australia. This chapter identifies the different ways that land rights may be recognized. Each of these mechanisms has strengths and weaknesses, with a constitution being the most robust form of protection for land rights. However, the biggest challenge is in the implementation of land rights. Despite the challenges, Indigenous Peoples have successfully protected and reclaimed their lands under the ongoing force of dispossession, employing strategies such as direct action and litigation. Drawing from the contexts presented in this edited book, this chapter identifies the barriers to advancing land rights; the strategies to overcome these barriers and to support the reclamation of land; and identifies some of the opportunities to strengthen land rights moving forward.

In 2011, the Brazilian Government began dismantling the country’s robust framework for Indigenous land rights by enacting measures to deny Indigenous Peoples’ access to their ancestral lands. From 2019 to 2022, the government did not recognize or title a single hectare of Indigenous lands, despite more than 700 pending requests for demarcation (or formal designation and titling). A change in government and six land demarcations in 2023, however, show signs of a new era for Indigenous Peoples’ rights and relationship with the state. This chapter analyzes evolving Indigenous land rights pre- and post-constitutionalization in 1988, the result of intense political mobilization and shifting colonialist perceptions of Indigenous Peoples. This chapter also discusses the main obstacles faced by Indigenous Peoples in enforcing Brazil’s protective land rights framework, accounting for the structures of settler colonial states – structures that permit institutional and physical violence against Indigenous Peoples by state and non-state actors alike. Finally, this chapter examines the opportunities created since the change in government in 2023, proposing new avenues to advance Indigenous Peoples’ constitutional land rights in Brazil.

The late twentieth-century recognition of indigenous peoples as collective subjects of human rights represents a case of “iconic indexicality,” as international human rights instruments held out promises of recognizing difference, repairing colonial harms, and reckoning with the slow violence of genocide. During the first decades of the twenty-first century, indigenous peoples in Guatemala mobilized human rights through legal actions to defend their ancestral territories and ways of being, mirroring similar processes occurring across Latin America. Yet at the same time the intensification of extractive industries deepened processes of capture of state apparatus by corrupt elites and criminal networks, leading to backlash and the stalling or reversal of earlier legal victories. Today indigenous communities and their allies are subject to systematic criminalization and renewed processes of legalized violent dispossession. This chapter argues that the current “juristocratic reckoning” with the promise of indigenous rights must be viewed in the longue durée. Indigenous people have engaged with hegemonic forms of law since conquest, and although these engagements acquired new dimensions and intensity during the twentieth century’s “age of human rights” (Goodale 2022), they were accompanied by a keen awareness of the historical role of law in old and new forms of colonial violence and dispossession. This is because colonial legal orderings of land and territorial resources are always racially constituted. As Nichols (2020), Di Giminiani (2018) and others have shown, the laws of the colonizers remade indigenous worlds by constituting land as an alienable object (“property”), displacing alternative “land ontologies” to justify racialized inequalities grounded in systemic violence. The late twentieth-century turn to law by indigenous peoples never supplanted other horizons of justice premised on alternative lifeworlds; indeed, the juristocratic shift and its centering of “self-determination” served to amplify claims and histories conceived prior to and beyond human rights law. As this chapter shows, through processes of judicialization indigenous lawyers’ collectives in Guatemala have meticulously documented long-run theft of indigenous lands and appealed to less individually centered and proprietary understandings of land to stake decolonial claims to self-determination. Various mechanisms have been deployed; for example, special expert witness reports or different forms of indigenous self-representation in court to amplify alternative ontologies within the public sphere. This strategic, discursive, and affective engagement with the law is just one part of ongoing processes to strengthen autonomous self-governance.

Despite Chile’s recent failed attempts at constitutional reform, Indigenous land rights are (still) governed by the much-contested Indigenous Law of 1993 (Law No. 19,253). The land restitution program foreseen in this law is extremely slow and controversial, and the establishment of Indigenous territories (by ordinary law) appears far from reality. At the same time, there are a few recognized Indigenous territories in Chile, and they are constantly faced with a high density of hydro-electric plants, extractivist activities, disproportionate forest and logging exploitation, salmon farming and a growing tourism industry. Over the years, Indigenous Peoples have reacted in different ways to dispossession and encroachment. Driven by frustration, some have assertively occupied their ancestral lands. Others have filed lawsuits and found a more equitable venue to claim their rights in the national courts. Against this background, this chapter analyzes the processes of dispossession faced by Indigenous Peoples in relation to their traditional lands in the north and south of Chile over recent decades, how they contested the titles to ownership and possession of such territories, and the outcomes of their litigation strategies. After the public rejections of constitutional reforms in 2022 and 2023, it remains uncertain how Indigenous land rights will be governed in the coming years or how they will be treated in any potential reforms to Pinochet’s Constitution of 1980. Despite the unfavorable legislative framework, this chapter argues that Indigenous strategic litigation can best advance and support land rights in Chile.

Despite a recent law recognizing and protecting the rights of Indigenous Peoples, the post-independence laws of the Democratic Republic of Congo (DRC) have dispossessed, and continue to dispossess, Indigenous Peoples of their customary land rights. Collective and customary property rights are enshrined in the DRC Constitution; however, in practice there is little to no recognition or protection. This is because land statutes work in cross-cutting ways to deny Indigenous Peoples the formal legal title to their traditional lands, and without title they are vulnerable to dispossession by development or conservation. In the absence of a land tenure system establishing clear collective ownership rights, “community forests” represent an alternative strategy or pathway for Indigenous Peoples to secure their customary rights over their forests and their lands (the local communities’ forest concessions, CFCLs). Despite some successful cases of securing land tenure through the CFCLs, inaccessible legal requirements and difficult procedures make these a problematic pathway for land justice. This chapter sets out recommendations for strengthening land tenure and CFCLs.

Since independence in 1966, the Republic of Botswana in southern Africa has had a long history of democratic elections. Botswana also has one of the highest populations of San peoples in the region, who have faced discrimination and marginalization for centuries. The San, who consider themselves to be Indigenous Peoples, are not accepted as such by Botswana’s government, which holds that all its citizens are Indigenous. San, who number some 60,000 in Botswana, have faced severe difficulties in getting access to land and natural resources. This chapter describes some of the processes of dispossession that San have faced. While some lands have been set aside as remote area settlements, these areas are not solely for San people. Communal land in the country is alienable, and there are no legal guarantees to land for San and other minorities. The expansion of the livestock, agriculture, tourism and mining industries have also had impacts on San people and their neighbors. San have responded to these situations by organizing non-government organizations (NGOs), lobbying for their rights nationally and internationally, and going to the High Court with legal cases, some of which have been successful. The legal cases involving the Central Kalahari San, in particular, have set international precedents – for example, to the human right to water – which have global relevance. However, the government has not honored many of the High Court judgments, leaving the San in a position where their land and resource rights are still precarious.

The year 2021 saw record violent dispossessions of Indigenous Peoples across Paraguay. Once heralded as an early adopter of Indigenous land rights and legal protections, Paraguay is now a site of contentious land politics that have garnered international attention and litigation. In this chapter, we draw from over forty years of collective experience working on and researching Indigenous land rights in Paraguay – from litigation before the Inter-American Court of Human Rights to ongoing advocacy with communities – and we trace the major legal achievements and document the ways that land rights have been challenged and threatened. We advance a theory of “pendulum policies” for land rights to trace the shifts in state-Indigenous relations, manifesting today as an implementation gap where de jure land rights are typically undermined in practice by state and private interests. In this chapter, we show how the role of international law and strategic litigations have pushed the pendulum from violations towards justice, yet we remain cognizant of the threats, from land renting to direct violence, which push the pendulum back towards violations. This chapter provides readers with a clear overview of Indigenous land rights in Paraguay, and offers recommendations for pushing the pendulum towards land justice over the next decade.

This chapter details the fragmented nature of the last sixty years of Aboriginal land repossession across Australia, both in terms of the nature of the rights and the level of restitution. Exploring the limited and uneven national Aboriginal land rights picture in 2024, we argue for an appreciation of the federal dimension of land rights policymaking. Uneven land restitution has resulted not just from spatially varying degrees of land commodification and the differing trajectories of land rights movements, although these were crucial. We aim to demonstrate that shifting state–Commonwealth (or Federal) relations within the Australian federation – crosscut against differing support from states and Commonwealth governments over time, and differing Commonwealth Government attitudes to federalism – led to a spatially uneven set of legislative land rights regimes across Australia. To do so, we narrate the varied responses to the Aboriginal land rights movement across the country in the wake of the Woodward Royal Commission in 1973 with an eye to the federal dimension. We argue that while the Whitlam, Fraser and Hawke governments from 1972 to 1991 all failed to legislate national land rights, they did so for very different reasons, leaving the land rights agenda to the states. Ultimately, it was the centralizing power of the High Court that brought about a national but inadequate and partial resolution to the Aboriginal land question. Finally, we provide a series of maps and tables describing the jurisdictional variation in rights and interests in land restored to Indigenous Peoples at present.

The legal recognition of Indigenous Peoples’ collective land rights is contentious in Colombia. There are enduring land disputes between state actors and Indigenous communities. Land rights policies have passed through several political cycles, but these have typically been poorly implemented, routinely violated by state actions, and often rolled back with new legislation. The 1991 National Political Constitution (NPC) transformed Indigenous-state relations, where for the first time in Colombia’s history, the collective cultural and land rights of Indigenous Peoples were recognized and protected in the country’s supreme law. To date, Indigenous Peoples have secured exclusive ownership rights to over 33 million hectares of collective lands, or 28 percent of the country. However, most Indigenous lands were titled before the 1991 NPC, which was constrained in its promise by a long-lasting internal armed conflict (among other factors). A 2016 historic Peace Agreement between the government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas promised to address the root cause of the conflict: land ownership disputes. This agreement has yet to resolve the land problem. Taking a historical perspective, this chapter analyzes the structural political and legal barriers to Indigenous land rights in Colombia. The chapter examines the interaction of the Peace Agreement with land rights laws and explores the strategies of Indigenous Peoples to secure and safeguard their land rights in this new context. The chapter concludes with recommendations for strengthening land rights across the nation.

In Malaysia, three ethnic groups identify as “Indigenous Peoples”: the heterogeneous Peninsular Malaysia Orang Asli, natives of Sabah, and natives of Sarawak. Malaysia’s hybrid legal system confers differing constitutional, statutory, and common law rights and privileges to Indigenous Peoples, which present distinct yet shared experiences of their land rights. These Indigenous groups were granted differing levels of constitutional privileges during Malaysia’s constitutional formation, which resulted in divergent written laws for the protection and recognition of their customary lands and resources. These differing laws and histories have functioned to dispossess these communities of their traditional lands, territories, and resources in their own ways. The strategy of litigation has afforded Indigenous communities some recourse for gaps in the written law but common law development of such rights and the court process have equally proven to be a barrier in some cases. Although international commitments to the sustainable management of resources have increased possibilities for the inclusion of Indigenous communities in matters concerning their lands and resources, constitutionally-entrenched legal privileges have yet to translate to the effective protection and recognition of traditional Indigenous lands and resources in Malaysia.

Identifying the populations and regions most vulnerable to climate change, this chapter features voices including Nakeeyat Dramani Sam from Ghana, highlighting the disproportionate impacts on young people and marginalised groups. Understanding ‘vulnerability’ is the key to addressing climate change. Jevanic Henry from Saint Lucia discusses rising sea levels and frequent hurricanes threatening coastal communities. The chapter emphasises the need for targeted adaptation strategies and global support to build resilience among low-income countries, small island developing states (SIDS), and Indigenous Peoples, and local communities (IPLCs). Isaac Nemuta, a Maasai pastoralist from Kenya, shares how prolonged droughts are decimating livestock. The chapter discusses the unique challenges faced by vulnerable groups, including limited resources, inadequate infrastructure, and political marginalisation. Calls for increased international aid, robust policy measures, and tailored climate resilience plans are emphasised, with examples like the Climate Prosperity Plans from Bangladesh and the Philippines. Empowering local communities through education, sustainable practices, and inclusive governance is crucial.

Chapter 4 elaborates how the World Bank translated the sustainable development principles into its operational policies and procedures. It details the contents of select safeguard policies – environmental assessment; involuntary resettlement; indigenous peoples – and their interpretation by the Inspection Panel. In the book’s treatment, these three environmental and social policies represent the topics and "non-economic" concerns that are to be integrated into the law of IFIs (and international economic law more generally) in order to form international sustainable development law.