Dear Brian,

There is no doubt that the judgment is of monumental importance since the objective of the judgment - giving the right of livelihood to people of aboriginal lands has been a topic of considerable interest and contestation across the world. While the Canadian judgment will take sometime to percolate down to other regions of the world, I wanted to share an input about an act that Indian Parliament passed in 2006 - Recognition of forest rights act, 2006. The Act seeks to recognize and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded.

This act also has come about after many decades of civil society/NGO activation to restore the right of livelihood to the dwellers of remote areas and forest. The term "scheduled tribes" in Indian parlance would mean aboriginal dwellers of forests and virgin lands.

Long before in 1976, the world adopted ICESCR which implicitly recognized the rights of people to their native lands, means of economic/social/cultural life. As is 'customary' every signatory/ratifier country has undertaken to transform the contents of the convention into reality through domestic legislation, where necessary. Yet, we know the actual tales of proprietorship that as the world we have gone about granting the aborigines.

We are discussing aborigines. Take women's suffrage - it is not till 1971 that Switzerland allowed women to vote in federal elections. Saudi Arabia is contemplating it in 2015. Change, I suppose, comes but the pace is excruciatingly slow.

Every judgment and act need to be followed by administrative policies that will enforce compliance in practice. We do hope that it happens in Canada as well as India.

Have a great day. 

Thank you so very much for these thoughtful comments Srinivasan.

I am very interested in the situation around Aboriginal / Indigenous / Scheduled Tribes Title in India, as both the Canadian and the Indian legal and property systems have such strong inheritances from British Imperial law.  (See the Legal scholarship of my colleague, Kent McNeil).   In Canada (and its prior colonies) the period between the 1830s and the 1890s was crucial, as that was a time of political transformation in the settler polities, where certain impulses to treat Indigenous peoples as having their own political formations were gradually overtaken by impulses to assimilate them into the civilizational and political formations of the state (notably through the Indian Act in the 1870s and thereafter).  This recognition of Title undoes some fundamental premises that informed the latter fully colonizing impulses, and perhaps stages a more resoluted recognition of Indigenous polities within their own lands.  It is interesting to know whether and how this judgment, or those that you speak to in India, enhances autonomy of these peoples, within or in relation to the states in question.

My second point of interest, related to this, is the degree to which such recognition of land rights may be coupled to enhanced exercise of Indigenous and local peoples jurisdiction within those lands, or others which they have had longstanding, supportable claims.

To be sure, the Tsilquot'in and Secwepemc people I am collaborating with in research take a strong position on the latter, and the SCC decision has, in this sense, opened up a most promising legal-political, and economic, horizon for Indigenous peoples here to move to Self-Determination, as well as stronger Inter-political relations with the Canadian Crown.  It will not be easy going forward, given past Crown positions on Canadian sovereign control, but scholars and Indigenous peoples alike are keen to track the power shift at play here, and how it will require the Crown's representatives to reassess their premises.  

This is the kind of remodelling of relations that could stimulate, and provide precedents -- I contend -- in what may be taking place in other states.

Dear Brian,

Colonization affected indigenous people in Britain's erstwhile colonies/dominions in different ways. Those familiar with Indian history will recall that 1857 (the famous Sepoy Mutiny) was a watershed year for it changed the British attitude towards Indians for ever. Coincidentally, just two years prior to the mutiny, 1855, was also an important year for in large measure it determined the British attitude towards aborigines and forest people. Most of the contemporary Indian historians tend to gloss over this and the politically savvy amongst them have conveniently branded the events of the year as "patriotic uprising of the forest tribes" and earned a few laurels to themselves.

In the Americas, both Britain and Spain (in particular) did not actually consider the aborigines as even humans. In large measure they went about annihilating entire populations. I may be pardoned for such sweeping statements but the murmurs that you hear in USA of the state of Indians (see for example: http://en.wikipedia.org/wiki/Siege_of_Fort_Pitt) ; the apology tended by Australian PM to the aborigines few years back; and the absolute erased-from-paper kind of end of South American aborigines - all these are pointers from which I made my observation. Restoring the rights of aborigines/forest dwellers over their native lands in the Americas (including North America) therefore has a huge backdrop of human rights advocacy for perceived historical injustices.

In the case of India and the nations of the subcontinent, it has a huge residual effect of colonial rule. A rule that had first taken them into cognizance and then oppressed them for its own commercial and territorial interest. A rule that never hesitated to use the gun to silence their voices for equitable share in the wealth of their lands largely due to vested commercial interests. Independence has brought in some change. But considering the size of the land and huge populations, the change is slow and needs tremendous overhaul of the political outlook as well as attitudes of the administrative machinery that governs the territories.

The title "Scheduled Tribes" incidentally comes from the Constitution of India. Considering the historical injustice to the these populations, the founders of Indian state considered it appropriate to provide a status and protection to these people for blending them into the "mainstream" of the society. There are two schedules (V & VI) that deal with the subject of scheduled areas, people living in them and administrative and other protections afforded to them.  

My area of research tangentially connects to matters related to this subject, though not directly. But I would be happy to share with you inputs for whatsoever they may be worth/relevant. My email address is in my message that I have just sent you.

Have a great day.