The quest for indigenous land rights intensifies : Mabo (no 2), Delgamuukw, Richtersveld and now the Endorois of Kenya : journal

DOI10.10520/EJC153194
Pages497-509
Date01 January 2011
AuthorG.N. Barrie
Published date01 January 2011
The quest for indigenous land rights
intensifies: Mabo (no 2), Delgamuukw,
Richtersveld and now the Endorois of
Kenya*
1 Introduction
Virtually all indigenous peoples share common problems resulting from an unhappy
relationship between the ‘conqueror’ and the ‘conquered’. The conquerors, inter
alia, as seen by the indigenous peoples ‘took away their land’ – land the indigenous
people had freely shared. Following on this the conqueror’s way of life was
imposed, political autonomy was drastically curtailed and in most instances the
indigenous people were dispossessed of their land and impoverished. During the
colonial area the colonists focussed on their quest to move from colony to
nationhood. The then existing jurisprudence of the indigenous peoples was
unknown in the political consciousness of the colonists and was overshadowed by
the doctrine of legal positivism as exercised by the courts and legal profession.
Indigenous peoples were seen to be distinctive societies with their own practices,
customs and traditions that merited no special legal or constitutional status. Legal
positivism rejected the concept that indigenous peoples had laws. The colonists,
their lawyers and courts saw indigenous peoples as peoples who merely existed on
or occupied land busying themselves with ‘mindless’ activities. Indigenous peoples
were seen as barbarians or savages without laws, courts or government.
2 Definition
Before continuing this ma y be the opportune juncture to attempt to define or
describe, for purposes of this article, the term ‘indigenous people’. Because there
is no gene ral international law nor national law definition of ‘indigenous people’
Lecture presented at the Native Law Centre, College of Law, University of Saskatchewan,
*
September 2011. I wish to express my appreciation to the law library of that College of Law for
assisting me in accessing materials.

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