Agreement making around the world
Article 37 of the United Nations Declaration on the Human Rights of Indigenous People (2007) recognises the right of Indigenous peoples to conclude treaties, agreements, and other constructive arrangements with states. Professor Megan Davis writes that ‘globally it is common practice for states with indigenous populations to enter into such agreements on a variety of matters, from land use to management of national parks’ (2016). The types of land agreements made with Indigenous communities vary across the world.
Some former settler colonial countries such as Canada and New Zealand have established frameworks for broad agreement making without litigation. In South Africa, the Land Reform Program provides constitutional protection for land restitution, redistribution and tenure reform.
Australia does not have an established Comprehensive Settlement framework. However, a number of agreements have been reached between Traditional Owners and state governments that provide outcomes beyond the native title process. See our summary of some of these comprehensive settlements.
Canada
In Canada, treaties provide the major framework for relations between Indigenous and non-Indigenous peoples. Agreements relating to land are negotiated under federal legislation, with some land claims agreements having treaty status under section 35 of the Constitution Act 1982. Comprehensive land claims follow a standard process and may produce a variety of types of agreement.
New Zealand
The Treaty of Waitangi sets the framework for agreement making and provides the basis for Maori claims resulting from past actions of the Crown. In New Zealand, land claims are generally made through the Waitangi Tribunal. The Tribunal can only hear claims relating to contemporary Crown actions or omissions, which means those that happened on or after 21 September 1992.
South Africa
Since the end of apartheid in 1994, the South African government has implemented numerous initiatives to counteract the long-term effects of this racial segregation policy. This has lead to the South African Land Programme, which has produced many thousands of land-related agreements. These include equity arrangements with resource companies and other initiatives to address economic inequality.