ancestral land
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Ancestral domain or ancestral lands refers to the lands, territories and resources of indigenous peoples, particularly in the
Asia-Pacific Asia-Pacific (APAC) is the part of the world near the western Pacific Ocean. The Asia-Pacific region varies in area depending on context, but it generally includes East Asia, Russian Far East, South Asia, Southeast Asia, Australia and Pacific Isla ...
region. The term differs from
indigenous land rights Indigenous land rights are the rights of Indigenous peoples to land and natural resources therein, either individually or collectively, mostly in colonised countries. Land and resource-related rights are of fundamental importance to Indigenou ...
,
Aboriginal title Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, ...
or
Native Title Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, ...
by directly indicating relationship to land based on
ancestry An ancestor, also known as a forefather, fore-elder or a forebear, is a parent or (recursively) the parent of an antecedent (i.e., a grandparent, great-grandparent, great-great-grandparent and so forth). ''Ancestor'' is "any person from whom ...
, while
domain Domain may refer to: Mathematics *Domain of a function, the set of input values for which the (total) function is defined **Domain of definition of a partial function **Natural domain of a partial function **Domain of holomorphy of a function * Do ...
indicates relationships beyond material lands and territories, including spiritual and
cultural Culture () is an umbrella term which encompasses the social behavior, institutions, and Social norm, norms found in human Society, societies, as well as the knowledge, beliefs, arts, laws, Social norm, customs, capabilities, and habits of the ...
aspects that may not be acknowledged in
land titles Land registration is any of various systems by which matters concerning ownership, possession, or other rights in land are formally recorded (usually with a government agency or department) to provide evidence of title, facilitate transactions, a ...
and
legal doctrine A legal doctrine is a framework, set of rules, Procedural law, procedural steps, or Test (law), test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about w ...
about trading
ownership Ownership is the state or fact of legal possession and control over property, which may be any asset, tangible or intangible. Ownership can involve multiple rights, collectively referred to as title, which may be separated and held by different ...
.


Concept

Indigenous peoples may prefer to be described as custodians or guardians of their ancestral domain or lands rather than as title owners or
land owner Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, r ...
s. The concept of individual property ownership and
land tenure In common law systems, land tenure, from the French verb "tenir" means "to hold", is the legal regime in which land owned by an individual is possessed by someone else who is said to "hold" the land, based on an agreement between both individual ...
that can be traded was often introduced as part of
colonialism Colonialism is a practice or policy of control by one people or power over other people or areas, often by establishing colonies and generally with the aim of economic dominance. In the process of colonisation, colonisers may impose their relig ...
. While the Western model of land ownership gives an individual the property right to control land as a
commodity In economics, a commodity is an economic good, usually a resource, that has full or substantial fungibility: that is, the market treats instances of the good as equivalent or nearly so with no regard to who produced them. The price of a comm ...
, indigenous conceptions have a cultural and spiritual character. They invoke a mutual responsibility and relationship between land and people. Professor
Michael Dodson Michael Dodson (1732–1799) was an English lawyer and writer on religious subjects. Life The only son of Joseph Dodson, dissenting minister at Marlborough, Wiltshire, he was born there in September 1732. He was educated at Marlborough Grammar Sc ...
AM described
Aboriginal Australians Aboriginal Australians are the various Indigenous peoples of the Australian mainland and many of its islands, such as Tasmania, Fraser Island, Hinchinbrook Island, the Tiwi Islands, and Groote Eylandt, but excluding the Torres Strait Islands ...
' idea of country using the term during his
Australian of the Year The Australian of the Year is a national award conferred on an Australian citizen by the National Australia Day Council, a not-for-profit Australian Governmentowned social enterprise. Similar awards are also conferred at the State and Territo ...
speech. He said:


History

The term was used as early as the 1920s in the work of the
International Labour Organization The International Labour Organization (ILO) is a United Nations agency whose mandate is to advance social and economic justice by setting international labour standards. Founded in October 1919 under the League of Nations, it is the first and o ...
(ILO). Initially, the ILO was concerned with the situation of indigenous and tribal peoples in their roles as workers in the overseas colonies of European powers. It became increasingly evident that indigenous peoples were exposed to severe labour exploitation and had a need for special protection in cases where they were expelled from their ancestral domains only to become seasonal, migrant, bonded or home-based
labourers A laborer (or labourer) is a person who works in manual labor types in the construction industry workforce. Laborers are in a working class of wage-earners in which their only possession of significant material value is their labor. Industries e ...
. This recognition led to adoption in 1930 of the ILO's
Forced Labour Convention The Forced Labour Convention, the full title of which is the Convention Concerning Forced or Compulsory Labour, 1930 (No.29), is one of eight ILO fundamental conventions of the International Labour Organization. Its object and purpose is to sup ...
(No. 29). Following the creation of the
United Nations The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be ...
, the ILO with the participation of other parts of the UN system created the
Indigenous and Tribal Populations Convention Indigenous and Tribal Populations Convention, 1957 is an International Labour Organization Convention within the United Nations that was established in 1957. Its primary focus is to recognize and protect the cultural, religious, civil and ...
(No. 107). Convention No. 107 was adopted in 1957 as the first international treaty on this subject. This involved the underlying assumption that the only possible future for indigenous and tribal peoples was integration into larger society, and that the state should make decisions regarding indigenous development. In 1986 an ILO committee of experts concluded that "the integrationist approach of the Convention was obsolete and that its application was detrimental in the modern world." In 1988 and 1989, the revision of Convention No. 107 was on the agenda of the International Labour Conference (ILC) and in June 1989, the Indigenous and Tribal Peoples Convention (No. 169) was adopted. This paved the way for the
United Nations Declaration on the Rights of Indigenous Peoples The Declaration on the Rights of Indigenous Peoples (UNDRIP or DOTROIP) is a legally non-binding resolution passed by the United Nations in 2007. It delineates and defines the individual and collective rights of Indigenous peoples, including th ...
in 2007.


Documentation

Indigenous peoples in Asia have used community mapping to advocate for
land rights Land law is the form of law that deals with the rights to use, alienate, or exclude others from land. In many jurisdictions, these kinds of property are referred to as real estate or real property, as distinct from personal property. Land use ...
. This mapping may include documenting
sacred sites Sacred space, sacred ground, sacred place, sacred temple, holy ground, or holy place refers to a location which is deemed to be sacred or hallowed. The sacredness of a natural feature may accrue through tradition or be granted through a bless ...
and
immaterial Immaterial may refer to: * The opposite of matter, material, materialism, or materialistic * Maya (illusion), a concept in all Indian religions, that all matter is a grand illusion * Incorporeality * Immaterialism, including subjective idealism ...
but geographically-linked
traditional knowledge Traditional knowledge (TK), indigenous knowledge (IK) and local knowledge generally refer to knowledge systems embedded in the cultural traditions of regional, indigenous, or local communities. According to the World Intellectual Property Organ ...
of land.


Regional contexts


Indonesia

In 2013, the Indonesian
Constitutional Court A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ...
amended the 1999 Law on Forestry to return land rights to indigenous peoples whose ancestral lands are forested. In Indonesia, there have been many land conflicts regarding indigenous community territories in resource-rich
Kalimantan Kalimantan () is the Indonesian portion of the island of Borneo. It constitutes 73% of the island's area. The non-Indonesian parts of Borneo are Brunei and East Malaysia. In Indonesia, "Kalimantan" refers to the whole island of Borneo. In 2019, ...
. According to data quoted in the ''
Jakarta Post ''The Jakarta Post'' is a daily English-language newspaper in Indonesia. The paper is owned by PT Niskala Media Tenggara and based in the nation's capital, Jakarta. ''The Jakarta Post'' started as a collaboration between four Indonesian med ...
'', following the enactment of the Masterplan for the Acceleration and Expansion of Indonesian Economic Development (MP3EI) in 2011, some 135 communities became involved in conflict with businesses. Many conflicts involve indigenous peoples' traditional cultures being uprooted by
palm oil Palm oil is an edible vegetable oil derived from the mesocarp (reddish pulp) of the fruit of the oil palms. The oil is used in food manufacturing, in beauty products, and as biofuel. Palm oil accounted for about 33% of global oils produced from ...
plantations, or
logging Logging is the process of cutting, processing, and moving trees to a location for transport. It may include skidding, on-site processing, and loading of trees or logs onto trucks or skeleton cars. Logging is the beginning of a supply chain ...
or
mining Mining is the extraction of valuable minerals or other geological materials from the Earth, usually from an ore body, lode, vein, seam, reef, or placer deposit. The exploitation of these deposits for raw material is based on the economic via ...
interests.
NGOs A non-governmental organization (NGO) or non-governmental organisation (see spelling differences) is an organization that generally is formed independent from government. They are typically nonprofit entities, and many of them are active in h ...
in Indonesia set up the Ancestral Domain Registration Agency. A community mapper said the agency was created to "be prepared for the court ruling. If it the Constitutional Court ruled that customary forests belonged to indigenous peoples, we wanted to be able to show where those customary forests were located."


Canada

The common term in Canada is "traditional territory". This can refer the entire
homeland A homeland is a place where a cultural, national, or racial identity has formed. The definition can also mean simply one's country of birth. When used as a proper noun, the Homeland, as well as its equivalents in other languages, often has ethni ...
of a large ethnic group or the particular hunting and trapping grounds of a small
band society A band society, sometimes called a camp, or in older usage, a horde, is the simplest form of human society. A band generally consists of a small kin group, no larger than an extended family or clan. The general consensus of modern anthropology ...
. In areas where treaties have been signed, it refers to the land outside of
Indian reserves In Canada, an Indian reserve (french: réserve indienne) is specified by the '' Indian Act'' as a "tract of land, the legal title to which is vested in Her Majesty, that has been set apart by Her Majesty for the use and benefit of a band." Ind ...
in which a particular indigenous nation still claims an interest. In the case of specific rights to hunt and fish in a territory, these are called "
aboriginal rights Indigenous rights are those rights that exist in recognition of the specific condition of the Indigenous peoples. This includes not only the most basic human rights of physical survival and integrity, but also the Indigenous land rights, rights ...
" and are a separate legal category from "
treaty rights In Australia, Canada, New Zealand and the United States the term treaty rights specifically refers to rights for indigenous peoples enumerated in treaties with settler societies that arose from European colonization. Exactly who is indigenou ...
". In the case of areas where there are no treaties, such as most of
British Columbia British Columbia (commonly abbreviated as BC) is the westernmost province of Canada, situated between the Pacific Ocean and the Rocky Mountains. It has a diverse geography, with rugged landscapes that include rocky coastlines, sandy beaches, ...
, the Supreme Court of Canada has ruled that
aboriginal title Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, ...
applies to the entirety of a nation's claimed homeland, and not just to the particular locations of villages and other intensely-used sites. This was a unanimous ruling by the court in the 2017 case '' Tsilhqot'in Nation v British Columbia''. However, in that same year, the Canadian court rejected the spiritual use of a site as being sufficient to establish aboriginal title, in '' Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations)''.


Philippines

In the
Philippines The Philippines (; fil, Pilipinas, links=no), officially the Republic of the Philippines ( fil, Republika ng Pilipinas, links=no), * bik, Republika kan Filipinas * ceb, Republika sa Pilipinas * cbk, República de Filipinas * hil, Republ ...
, the term is used to refer to indigenous peoples'
land rights Land law is the form of law that deals with the rights to use, alienate, or exclude others from land. In many jurisdictions, these kinds of property are referred to as real estate or real property, as distinct from personal property. Land use ...
in law. Ancestral lands are referred to in the Philippines Constitution. Article XII, Section 5 says: "The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being." The Indigenous People's Rights Act of 1997 recognizes the right of Indigenous peoples to manage their ancestral domains. The law defines ancestral domain to include lands, inland waters, coastal areas, and natural resources owned or occupied by Indigenous peoples, by themselves or through their ancestors. The
Food and Agriculture Organization The Food and Agriculture Organization of the United Nations (FAO)french: link=no, Organisation des Nations unies pour l'alimentation et l'agriculture; it, Organizzazione delle Nazioni Unite per l'Alimentazione e l'Agricoltura is an intern ...
's research on forest land ownership in the Philippines found conflicts in institutional mandates among the
Local Government Code Codification of laws is a common practice in the Philippines. Many general areas of substantive law, such as criminal law, civil law and labor law are governed by legal codes. Tradition of codification Codification is predominant in countrie ...
,
mining law Mining law is the branch of law relating to the legal requirements affecting minerals and mining. Mining law covers several basic topics, including the ownership of the mineral resource and who can work them. Mining is also affected by various r ...
and the National Integrated Protected Areas Act, and recommended exclusive resource use rights to community-based forest management communities.


See also

*
Free, prior and informed consent Free, prior and informed consent (FPIC) is aimed to establish bottom-up participation and consultation of an indigenous population prior to the beginning of development on ancestral land or using resources in an indigenous population's territory. I ...


Notes

{{reflist International law Indigenous rights Theories of law Religion and law