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

Abstract

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.