Aboriginal Title, Indigenous Rights and The Right To Culture

ABORIGINAL TITLE,
INDIGENOUS RIGHTS AND THE

RIGHT TO CULTURE
KARIN LEHMANN*
ABSTRACT
The doctrine of aboriginal title has been the subject of considerable academic
commentary in South Africa in the past few years. The general tenor of this
commentary has been approving of the doctrine. Proponents of the doctrine are of the
view that it provides a means for communities to obtain ownership of land when they
are not able to do so through the Restitution of Land Rights Act 22 of 1994. This
article questions whether the doctrine really is of value for South African
communities. On the one hand, it is suggested that few communities, if any, would
meet the doctrine’s rigorous requirements. More significantly, it is suggested that the
doctrine, in its parent jurisdictions, does not operate to restore land to dispossessed
communities. It recognises only that aboriginal communities currently in occupation
of land have rights in and to the land. It is in this regard that the doctrine’s application
in South Africa is most problematic. The terms ‘aboriginal’ and ‘indigenous’ are used
interchangeably under comparative and international law. Although there is standard
definition of ‘indigenous’, under the suggested definition that has been most widely
accepted, it is not clear that the black African majority in South Africa would
constitute ‘indigenous’ peoples, in the sense of constituting distinct rights bearers. A
broad definition of ‘indigenous’ that would include black African communities is not
consistent with the purpose that the recognition of indigenous rights seeks to achieve.
A narrow definition of ‘indigenous’ that includes only the descendants of Khoesan
peoples is likely to prove highly contentious, and may undermine the spirit of national
unity and reconciliation that the Constitution seeks to achieve. An approach that
avoids the need to identify communities as indigenous for the purpose of claiming
rights in and to land is therefore to be preferred. It is suggested that the constitutional
right to culture provides an alternative, since the link between aboriginal title and the
protection of culture is clearly drawn in Canadian and Australian cases.
I INTRODUCTION
Aboriginal title is in vogue. Inspired by recent developments in Canada
and Australia,1 academics and practitioners have rushed to poke, prod
and feel this novel2 legal creature, much as anthropologists have done in
* Lecturer in Law, University of Cape Town. My thanks to PJ Schwikkard and Francois du Bois
for taking the time to read and comment on an earlier draft of this paper.
1 In particular, the cases of Mabo v Queensland (No 2) (1992) 175 CLR 1 and Delgamuukw v
British Columbia (1997) 153 DLR (4th) 193. See also Calder v British Columbia (AG) (1973) 34
DLR (3d) 145.
2 Although Chief Justice Marshall is credited with first recognising the continued existence of
Native American land rights in a trilogy of cases in the 19th century, beginning with Johnson v
M’Intosh 21 US (8 Wheat) 543 (1823), he did not give expression to the doctrine in its modern
form.
86
ABORIGINAL TITLE, INDIGENOUS RIGHTS AND THE RIGHT TO CULTURE 87
respect of indigenous peoples themselves.3 In South Africa, the doctrine

represents, for its proponents, a possible solution to the problem posed
by the Restitution of Land Rights Act 22 of 1994 (Land Rights Act) for
many communities – that claims to restitution may only be made for
post-1913 dispossessions.
The present status of the doctrine in South Africa is uncertain. Prior to
the Constitutional Court’s decision in Richtersveld Community v
Alexkor,4 the prevailing judicial attitude, as expressed in the Land
Claims Court and Supreme Court of Appeal cases of the same name, was
one of caution. The Land Claims Court doubted that the doctrine formed
part of South African common law.5 The Supreme Court of Appeal’s
approach was somewhat more noncommittal.6 The Supreme Court of
Appeal felt that it was unnecessary, in view of the conclusion it ultimately
reached, to decide whether the doctrine either did or should form part of
South African law, but had reservations about the doctrine’s potential
place in the South African legal order.7 Although both courts’
examination of the doctrine was cursory, it was not nearly as cursory
as that of the Constitutional Court. Equally, although the opinion of
both the Land Claims Court and Supreme Court of Appeal was to some
extent open-ended, it was not nearly as open-ended as that of the
Constitutional Court. Anyone reading the Constitutional Court’s
decision in isolation from these two earlier judgments, would have great
difficulty in fathoming whether the doctrine does or does not form part of
South African law. It is likely that they would conclude that it does. On
the one hand, there is the Constitutional Court’s failure to expressly
accept, or even discuss, the doctrine eo nomine. This fact alone, in light of
the Land Claims Court and Supreme Court of Appeal’s reservations,
coupled with the Constitutional Court’s statement that our constitutional
framework makes the South African situation substantially different to
that in Canada and Australia,8 suggests that the Constitutional Court
does not endorse the doctrine. On the other hand, the Constitutional
Court’s language and approach is that of Canadian and Australian
aboriginal title jurisprudence. The Court speaks of ‘indigenous law’ and
‘indigenous title’, in preference to customary law.9 The Court accepts that
the Richtersveld community is an indigenous community in the same
3 Articles and case notes published on the doctrine include: TW Bennett & CH Powell
‘Aboriginal Title in South Africa Revisited’ (1999) 15 SAJHR 449; A Reilly ‘The Australian
Experience of Aboriginal Title: Lessons for South Africa’ (2000) 16 SAJHR 512; LA Hoq ‘Land
Restitution and the Doctrine of Aboriginal Title’ (2002) 18 SAJHR 421.
4 2003 (12) BCLR 1301 (CC).
5 2001 (3) SA 1293 (LCC) para 46.
6 Richtersveld Community v Alexkor Ltd 2003 (6) SA 104 (SCA).
7 Note 5 above, para 43.
8 Note 4 above, paras 34-5.
9 Ibid n8.
88 (2004) 20 SAJHR
sense in which claimant groups in Canada and Australia are indigen-

ous.10 The Court believes it necessary to determine the ‘nature and
content of the land right of the Richtersveld Community prior to and
after annexation’ in order to assess whether the community was
dispossessed of its land rights after 19 June 1913.11 As a result, the
Court is then obliged to examine whether the community’s indigenous
title was extinguished by subsequent legislative or executive action.12 This
is precisely the approach of Canadian and Australian courts in aboriginal
title cases.13 On a correct reading of the Land Rights Act, a community’s
relationship with the claimed land at annexation might be of evidential
value, in underscoring the longevity of their title, but should not be
pivotal to the enquiry. The Land Rights Act requires that the community
enjoy a customary law interest as at the time of dispossession, not that
the community enjoyed title from annexation to dispossession. This being
the case, there was no need for the Court to traverse the Richtersveld
community’s history all the way back to annexation, and to employ the
concepts and language of aboriginal title cases as developed in other
jurisdictions, unless the Court wished to show tacit support for the
doctrine, and to leave open the possibility that South African law may yet
be developed so as to find a place for the doctrine outside the confines of
the Land Rights Act.14
The possibility therefore remains that the doctrine may yet at a future
date find its way into the South African legal order, should an
appropriate case come before a sympathetic bench. But does the doctrine
actually ‘fit’ into the South African legal and social order, as its
proponents believe it does? It is my submission that it does not.
On a purely utilitarian approach, the doctrine’s potential costs could
far outweigh its benefits. For who are the potential beneficiaries of the
doctrine? What is its potential value for South African communities?
Given that the legislature has adopted a comprehensive land reform
process, its potential beneficiaries can only be those communities that fall
outside the scope of the restitution and land-tenure reform pro-
grammes.15 The doctrine may therefore be of meaning for either those
communities that are unable to recover land under the Land Rights Act,
because they were dispossessed prior to 1913, or for those whose current
occupation of land is insecure because they do not enjoy title to the land.
The emphasis placed upon the doctrine thus far in academic writings is
on the former potentiality: the view being that the doctrine enables
10 Ibid. This is implicit in paras 33-4.

11 Ibid para 45.
12 Ibid paras 70-82.
13 The only comparative cases to which the Court makes reference are those of Canada and
Australia. Ibid n21.
14 Ibid para 38.
15 As contained in the Restitution of Land Rights Act 22 of 1994, and the Interim Protection of
Informal Land Rights Act 31 of 1996.
communities to recover land of which they were dispossessed.16 Its true

character, in my opinion, as it has been developed in Canada and
Australia, is quite different. It is a doctrine that performs the equivalent
in its parent jurisdictions of the land tenure reform process in South
Africa. It does no more than recognise that certain groups enjoy rights in
land by virtue of the fact that they have remained in occupation of the
same land occupied by their forebears (as a community) since the time of
colonisation.17 It does not operate broadly, to undo past wrongs, in the
way the Land Rights Act seeks to do. As such, any inadequacies in the
present legislative framework are best addressed by the adoption of
supplementary legislation.
The phrase aboriginal title is itself somewhat ambiguous. Is it title held
by aboriginals, or is it a form of title recognised under aboriginal law?
Canadian decisions emphasise the former element. It is, in their
jurisprudence, title held by peoples because they are aboriginal. If the
claimants are aboriginal, and if they meet the additional criteria laid
down by the courts, they enjoy a form of ownership under Canadian law
which the courts themselves describe as sui generis.18 Australian courts,
perhaps somewhat disingenuously, given the spiritual and non-proprie-
tary nature of aboriginal relationships with land, emphasise the
customary law element of aboriginal title.19 Nothing much turns on this
distinction, for in both cases it is only aboriginal peoples that can ‘own’
land under the doctrine.
And herein lies the rub for South Africa. For who are the ‘aboriginal
peoples’ of South Africa, under comparative and international practice?
If only those groups or communities descended from San and Khoekhoe
(henceforth ‘Khoesan’)20 peoples are, strictly speaking, aboriginal, the
doctrine’s value as a means of obtaining access to (or rights in) land
16 Bennett & Powell (note 3 above) 449.

17 See in particular Delgamuukw (note 1 above) paras 143-54; para 190.
18 Ibid paras 111; 125. See paras 146-48 for a discussion on the role played by aboriginal law in
establishing the existence of aboriginal title. Despite stating that account must be taken of
aboriginal perspectives in establishing the existence of a continuing relationship with land, the
Supreme Court clearly regarded the fact of physical occupation as the most important
criterion.
19 Mabo (note 1 above) 64. For a description of Aboriginal conceptions of their relationship to
land, see Australian Research Council Collaborative Project on Governance Structures for
Indigenous Australians On and Off Native Title Lands Discussion Paper 4 Land Holding and
Governance Structures under Australian Land Rights Legislation (1998) available at <http://
www.austlii.edu.au/>.
20 The term ‘Khoisan’ continues to be used as a convenient composite in academic literature.
However, a recent newspaper article reports that San groups reject the use of the term, whether
it is used to refer to Khoisan peoples or to Khoisan languages, for they consider it ‘a political
ploy by non-San-speaking people to continue subjugating their unique culture to that of Nama
and !Xirigowab (better known as Griqua) language groups. Attempts to lump the Khoi and
San languages into one group smacks of apartheid practices, said the various Ju/’hoansi, !Xun,
Khwedam, Khoikhoigowab and Nora groups’. ‘The Khoi don’t share our culture, say San’
Weekly Mail & Guardian (26 April 2001). For a discussion of the meaning of San and
Khoekhoe, see notes 70 and 71 below.
90 (2004) 20 SAJHR
would be negligible. The social cost that could follow from limiting the
potential beneficiaries to Khoesan peoples is significant, since a narrow
approach would entail the exclusion of black African communities. On
the other hand, an inclusive approach to the concept of aboriginality,
that would include also all black African groups, confounds the logic that
underlies the recognition of aboriginal rights, that of protecting the
interests of a particular politically and socially marginalised minority. It
is my opinion that the concept of aboriginality, which is used
interchangeably with the term indigenous in international and compara-
tive jurisprudence, would probably not include both Khoesan and black
African groups, but would be limited to the former only. If my
understanding is correct, its introduction would be detrimental to the
spirit of national unity and reconciliation that underpins the Constitu-
tion. If my understanding is incorrect, I remain of the view that its
introduction would serve little useful purpose, for two reasons: few
communities would meet its rigorous requirements; those few that do
would in any event in all probability have no need of its protections, for
they would be adequately protected by the land restitution and tenure
reform programmes. Most significantly, I am of the view that the
doctrine as it has been developed to date, recognises and protects existing
relationships with land only. It does not operate to restore past
relationships. As such, its potential value as an alternative means of
obtaining restitution of land is extremely limited, if not non-existent,
given that few communities are likely to have retained relationships with
the land of which they were dispossessed before 1913. In any event, in
light of the constitutional right to culture, there is no need to import the
doctrine of aboriginal title into South African law. The doctrine as
developed elsewhere, especially in Canada, recognises communities’
rights in land where their relationship with the land forms an integral part
of the distinct culture of the claimant community. The link between land
and culture is clearly drawn in Canadian jurisprudence.21 The Canadian
constitution does not recognise a distinct right to culture. The South
African Constitution does. Surely giving content to rights contained in
the South African Constitution is preferable to importing a doctrine
developed in countries whose histories, demographics and political, social
and legal orders are very different to those of South Africa – particularly
when the doctrine sought to be imported is controversial even in its
parent-jurisdictions.22
21 See the discussion on the right to culture below.

22 For criticisms of the doctrine, see G Christie ‘Delgamuukw and the Protection of Aboriginal
Land Interests’ (2000-2001) 32 Ottawa LR 85; R Bartlett ‘The Content of Aboriginal Title and
Equality Before the Law’ (1998) 61 Saskatchewan LR 377. Christie’s criticism is particularly
trenchant. He writes that ‘[u]nfortunately, the legal creature known as ‘‘Aboriginal title’’ seems
to have very little to do with Aboriginal visions of land title, and everything to do with
accelerating the integration (and disappearance) of Aboriginal peoples into Canadian society’
(para 3).
In this paper, I discuss the relationship between aboriginal title and

indigenous rights, in order to show that rights in land are only one of the
rights claimed by indigenous peoples, and that aboriginal title in turn is
simply the legal mechanism chosen by the judiciaries in some countries to
give effect to that right. I then consider the prevailing definition of
‘indigenous’, to show that it is by no means self-evident that all South
Africans whose ancestors were in occupation of territory within the
current borders of South Africa at the time of colonisation would
necessarily fit within the definition. I then briefly consider the limitations
of the doctrine as a form of redress, and argue that the right to culture
could be developed so as to achieve at minimum the same outcomes as
have been achieved by the doctrine of aboriginal title in other
jurisdictions.
II ABORIGINAL TITLE AND INDIGENOUS RIGHTS

The terms aboriginal and indigenous are synonymous. It is true that as
literary terms, there are nuanced differences, but in legal literature and
jurisprudence, the terms are used interchangeably.23 Aboriginal title is a
term principally used by the courts of Canada. In Australia, courts
generally speak of ‘native title’, and in the United States, the term most
commonly employed by scholars is ‘Indian title’. Nothing of substance
turns on the distinction. They are terms of convenience, and both writers
and courts recognise that when they use the term ‘aboriginal title’ in their
own jurisdiction, the equivalent in another jurisdiction may be ‘Indian’
title, and so forth.24
At the international level, and in comparative literature, the language
employed is that of ‘indigenous’ peoples. Australian Aborigines,
Canadian Indians, Inuit and Metis25 and Native Americans are
collectively spoken of as ‘indigenous’ peoples. The term indigenous is
thus a generic term, and is one which includes, but is not limited to,
peoples from North America and Australia. Some additional indigenous
claimant groups are acknowledged as such by their national governments
(like the Maori of New Zealand and the Sami of Finland) while others
(like the San of Botswana) are not. It would be disingenuous to try and
suggest that the meaning of indigenous and aboriginal is different, in any
significant sense. The difference is one of linguistic convention only. All
aboriginal peoples are indigenous peoples, and vice versa.
23 Although I regard this as a self-evident proposition, other writers have also stated as much in
express terms. See for example A Gillespie ‘Aboriginal Subsistence Whaling: A Critique of the
Inter-Relationship between International Law and the International Whaling Commission’
(2001) 12 Colorado J of Int L & Policy 77.
24 In Mabo (note 1 above), the court spoke of ‘native title’, while Delgamuukw (note 1 above),
relying on Mabo, spoke of ‘aboriginal title’.
25 Section 35(2) of the Constitution Act, 1982 defines ‘aboriginal peoples of Canada’ as the
‘Indian, Inuit and Metis peoples of Canada’.
92 (2004) 20 SAJHR
In each of the countries that has acknowledged the existence of distinct

indigenous peoples, indigenous peoples enjoy special rights, rights not
enjoyed by all members of their national societies. One example is the
right to fish or hunt despite the fact that fishing and hunting is prohibited
by conservation legislation.26 Another example is the communal right to
ownership of ancestral land, the right that is protected by the doctrine of
aboriginal title. In the leading Canadian case of Delgamuukw v British
Columbia, Lamer CJ describes a continuum of aboriginal rights, the most
extensive of which is aboriginal title:
. . . aboriginal rights which are recognized and affirmed by s. 35(1) fall along a spectrum
with respect to their degree of connection to the land. At the one end, there are those
aboriginal rights which are practices, customs and traditions that are integral to the
distinctive aboriginal culture of the group claiming the right. However, the ‘occupation
and use of the land’ where the activity is taking place is not ‘sufficient to support a claim of
title to the land’. . . . Nevertheless, those activities receive constitutional protection. In the
middle, there are activities which, out of necessity, take place on land and indeed, might
be intimately related to a particular piece of land. Although an aboriginal group may not
be able to demonstrate title to the land, it may nevertheless have a site specific right to
engage in a particular activity. . . . At the other end of the spectrum, there is aboriginal
title itself [which] confers more than the right to engage in site specific activities which are
aspects of the practices, customs and traditions of distinctive aboriginal cultures. Site
specific rights can be made out even if title cannot. What aboriginal title confers is the
right to the land itself. Because aboriginal rights can vary with respect to their degree of
connection with the land, some aboriginal groups may be unable to make out a claim to
title, but will nevertheless possess aboriginal rights that are recognized and affirmed by
s. 35(1), including site specific rights to engage in particular activities.27
Each of these rights inheres in aboriginal peoples because they are

aboriginal. The scope of those rights differs from country to country, but
the legal foundation for their existence is the same: the fact that they are
aboriginal.
[A]boriginal rights must be viewed differently from Charter rights because they are rights
held only by Aboriginal members of Canadian society. They arise from the fact that
aboriginal people are aboriginal. As academic commentators have noted, aboriginal
rights ‘inhere in the very meaning of aboriginality’; they are rights held by ‘Indians qua
26 See for example R v Van der Peet (1996) 2 SCR 507; R v Sparrow (1990) 1 SCR 1075; R v NTC
Smokehouse Ltd (1996) 2 SCR 672; R v Adams (1996) 3 SCR 101. Many Canadian cases on
indigenous rights are criminal cases, which arise because indigenous Canadians have been
prosecuted for fishing or hunting or engaging in other activities in contravention of
conservation legislation. The defence raised is the fact that the accused enjoys an aboriginal
right to engage in the activity in question in terms of s 35 of the Canadian Constitution.
Section 35 states that ‘[t]he existing aboriginal and treaty rights of the aboriginal peoples of
Canada are hereby recognised and affirmed’. Native Americans are similarly protected by
federal Indian law, and enjoy ‘preferential natural-resource harvesting rights both on and off
their reservations’. See PD Glavovic ‘Environmental ‘‘Group’’ Rights for Indigenous South
Africans’ (1991) 107 SALJ 67. Glavovic is of the view that all traditional communities in
South Africa that rely on access to natural resources for subsistence, should be permitted such
access as a matter of right, even when the self-same activities are prohibited to other members
of society. His argument has great merit, but need not be tied to indigenous identity.
27 Delgamuukw (note 1 above) paras 138-39.
Indians’. . . The task of this Court is to define aboriginal rights in a manner which
recognizes that aboriginal rights are rights but which does so without losing sight of the
fact that they are rights held by aboriginal people because they are aboriginal. The Court
must neither lose sight of the generalized constitutional status of what s. 35(1) protects,
nor can it ignore the necessary specificity which comes from granting special
constitutional protection to one part of Canadian society. The Court must define the
scope of s. 35(1) in a way which captures both the aboriginal and the rights in aboriginal
rights.28
While it is easy to lose sight of the link between aboriginal title and
indigenous rights generally when attention is focused on the specific
elements that need to be proven for a successful claim based on
aboriginal title, that link must not be forgotten. For unless the claimant
community is in fact an aboriginal, or indigenous, community, the mere
fact that the community is one which has occupied the land for
generations or even centuries will clearly not be sufficient to enable it to
claim a right to land based on aboriginal title.29 Equally, once the
claimant community has established its identity as an indigenous
community, it can potentially lay claim to a whole series of rights, in
addition to rights in or to land.30
In many regions in the world the identity of indigenous groups is
obvious. Equally, in many regions, it is not. It is precisely because it is not
universally self-evident that the issue of indigenous rights is a
controversial one, especially from the perspective of governments. Most
governments do not deny that indigenous peoples are deserving of special
treatment. Instead, they deny the presence of indigenous peoples stricto
sensu within their own borders, in order to deflect criticisms and claims
by domestic indigenous-claimant groups.31 In order to assist indigenous
peoples in all parts of the world, and in order to distinguish appropriate
from inappropriate claimants, the United Nations Working Group on
Indigenous Peoples (UNWGIP) has sought to develop a general
28 R v Van der Peet (note 26 above) paras 19-26 (emphasis original).

29 A good example being the Rehoboth Basters of Namibia, a group of predominantly mixed
Khoe-European descent, originally from South Africa, which settled in Rehoboth to escape
Cape colonial rule in the 1860’s. The United Nations Working Group on Indigenous Peoples
(UNWGIP) refused to accord them indigenous status, for the purpose of participation at the
UNWGIP, despite their assertion that they were an indigenous people in that their presence in
Namibia predated German colonisation of the area. The Namibian government is similarly
unsympathetic to their claims that they enjoy indigenous title to the land they occupy.
30 See notes 40-41 below and accompanying text.
31 In his report on the 57th Session of the UN Commission on Human Rights, MJ Denis writes:
‘The most difficult issue confronting the working group continues to be the lack of a common
understanding concerning the definition of the term ‘indigenous people’. The Asian regional
group has insisted on developing a definition that excludes the region’s own indigenous people.
At the 2001 Commission session the regional group insisted that ‘the indigenous people’
question concerns only ‘the situation of the original inhabitants in certain parts of the world
who were dispossessed and marginalised by settlers from overseas and still remain under
domination’ and that ‘in the Asian context, a distinction between indigenous and non-
indigenous is hardly possible’. MJ Denis ‘The 57th Session of the UN Commission on Human
Rights’ (2002) 96 American J of Int L 181.
94 (2004) 20 SAJHR
definition of ‘indigenous’. Despite its efforts spanning two decades, the

UNWGIP has still not succeeded in doing so.
Amongst the countries in which the issue of indigenous identity is not
contentious, are all those in which the doctrine of aboriginal title has thus
far been developed and applied, for all are countries in which the
indigenous and non-indigenous sectors of the national population are
readily distinguishable. Indigenous peoples in Canada and Australia are
those whose forebears were in occupation of the land at the time of
colonisation. This is the only relevant criterion to which courts in those
jurisdictions need have regard. It is their histories, together with those of
the United States and New Zealand, that have after all given rise to the
‘blue-water’ test, which equates indigenous with pre-colonial, and which
can be criticised for being either overly-broad or under-inclusive,
depending on the perspective from which one approaches the issue.32 It
is easy to distinguish indigenous from ‘settler’ communities, and there has
thus been no need for the judiciaries of those countries to grapple with
who or what constitutes an indigenous person or community.
In other countries, the meaning of indigenous is less clear-cut. There
are many peoples around the world who seek recognition from their
governments as the indigenous peoples of those countries.33 There are
many countries that refuse to accord claimants such recognition, for the
clear-cut distinctions between a dominant ‘settler’ population of
European origin versus a non-dominant population with pre-colonial
ties to the land do not exist.34
32 See further R Barsh ‘Indigenous Peoples: An Emerging Object of International Law’ (1986) 80
American J of Int L 369, who sets out some of the debates surrounding definition that have
taken place at the UNWGIP.
33 Countries that do accept the presence of indigenous peoples include most Central and South
American countries, Scandinavian countries (in respect of the Sami), and most recently, Japan,
that has recognised that the Ainu constitute an indigenous people, and not simply an ethnic
minority, as previously claimed. The extent of the rights enjoyed by each group differs from
country to country. See further S Wiessner ‘Rights and Status of Indigenous Peoples: A
Global Comparative and International Legal Analysis’ (1999) 12 Harvard Human Rights J 57.
34 A case in point is that of the Botswanan government, which continues to refuse to recognise its
approximately 50 000 San inhabitants as the indigenous peoples of Botswana. In a report
written in 1981 by a former Botswanan government official, Liz Wily, who had held the post
of Botswana Development Officer, she records her unsuccessful attempts to obtain land rights
for the San. Amongst the reasons for the Botswanan government’s refusal to recognise San
land rights was its desire to avoid the divisive ethnic and racial divisions experienced in other
parts of Southern Africa, but also because the San were perceived as ‘backward’, and it was
felt that they ‘shouldn’t still be living in the Bush anyway’. L Wily The TGLP and Hunter-
Gatherers: A Case Study in Land Politics (1981) National Institute of Development and
Cultural Research Working Paper No 33, University of Botswana. The position of the San has
not improved in the intervening years. Recent media reports indicate that the Botswanan
government is continuing in its attempts to induce San communities resident in the Central
Kalahari Game Reserve to leave the reserve, since their presence there is thought to be
interfering with the Reserve’s tourism and diamond-mining potential. Many who refused to
leave have been forcibly removed. Ironically, the Reserve was created by the former British
colonial government in 1961, in part to enable the San to continue their hunter-gatherer
lifestyle, if they so chose. A comprehensive account of their experiences is contained in a recent
The clear-cut distinctions that exist in Canada and Australia do not

exist in South Africa. South Africa is no longer a society in which peoples
of pre-colonial origin are politically dominated by peoples of European
origin. Despite, or perhaps because of, South Africa’s transition to a
constitutional democracy in 1994, it is only since then that particular
groups have begun to promote an identity as the indigenous peoples of
South Africa. These groups share a common element in that they are all
descendants of San and Khoekhoe peoples. The particular groups range
from the Cape Cultural Heritage Development Council,35 to various
Griqua organisations operating under the auspices of the Griqua
National Forum,36 to Nama and San groups.37 It is not clear what
specific benefits each group hopes to obtain if the State were to recognise
their indigenous status. Land acquisition appears to be of primary
concern to San and Griqua groups. In this regard, San identity is thought
to have played a significant role in the expeditious resolution of the
Khomani San land claim in the Kalahari, and in the State’s generous land
settlement to the non-South African San employed by the South African
Defence Force.38 Implicit in the claim by the Richtersveld Community, is
an assertion of its indigenous identity.
Given this awakening interest in indigenous identity, and the potential
it presents in socio-economic terms,39 it is clear that South African courts
may in the near future be required to decide whether particular peoples
book by S Gall The Bushmen of Southern Africa: Slaughter of the Innocent (2001). An account
of their forced displacement is also contained in a series of newspaper articles. ‘A landless
people of the land’ Weekly Mail & Guardian (July 1996); ‘The Bittereinders of the Kalahari’
Weekly Mail & Guardian (2 July 1999). A recent newspaper report however says that in a
‘radical about-turn’, the Botswanan government has agreed to give the San usage rights over
24 000 km2 of the Central Kalahari and Khutse Game Reserves. The same was however said in
a newspaper report in 1996, and the intervening five years instead brought about the most
concerted attempt at dispossession of the San. The two reports are: ‘Bushmen to Remain in
Reserve’ Weekly Mail & Guardian (July 1996); ‘Going Back to their Roots’ Weekly Mail &
Guardian (31 August 2001).
35 An International Labour Office (ILO) paper describes the formation of the CCHDC as a
‘notable case of revivalism’. It is an organisation led by the self-styled ‘Chief’ Joseph Little,
who together with others has claimed chieftaincy of a long-extinct Khokhoe group. ILO
Indigenous Peoples of South Africa: Current Trends (1999) 10.
36 Ibid 9. During apartheid, the Griqua pressed unsuccessfully for the creation of a separate
Griqua ‘homeland’. See C Saunders Historical Dictionary of South Africa (1983) 76.
37 The San are represented by an externally-funded NGO called the South African San Institute,
established in 1996. Its website (<http://www.san.org.za>) proclaims them the indigenous
people of South Africa. Khoe groups, such as the Nama and Griqua, have no equivalent non-
governmental organisation dedicated to promoting their interests. There are a number of
additional organisations representing San interests in Southern Africa generally.
38 S Douglas ‘Reflections on State Intervention and the Schmidtsdrift Bushmen’ (1997) 15 J of
Contemporary African Studies 45.
39 See S Robins ‘Transgressing the Borderlands of Tradition and Modernity: Identity, Cultural
Hybridity and Land Struggles in Namaqualand (1980-1994)’ (2000) 15 J of Contemporary
African Studies 23, for an interesting discussion on the re-emergence of ‘Nama’ identity in
Namaqualand, an identity relied upon by individuals in resisting the State’s decision to replace
communal tenure with individual tenure, as a result of which they would have lost their access
to land.
96 (2004) 20 SAJHR
are entitled to particular rights by virtue of the fact that they are
indigenous. Acceptance of the doctrine of aboriginal title may in
consequence lead to further claims based on assertions of indigenous
identity. What specific rights may in future be claimed is impossible to
predict, but ILO Convention 169 of 198940 and the United Nations Draft
Declaration on the Rights of Indigenous Peoples provide a guide to the
types of rights sought by indigenous communities. These include, inter
alia, the right to land, the right to restitution of land, the right to culture,
part of which includes the right to practice customs and traditions
otherwise prohibited by the state, the right to revitalisation of culture, the
right to indigenous-language schooling, the right to be subject to
indigenous penal laws and, most controversially, the right to self-
determination. Numerous scholars are of the view that some of these
rights, in particular the rights to land and self-determination, have
become norms of customary international law.41 The potential therefore
exists that indigenous peoples in South Africa may begin to seek
satisfaction of rights they claim to hold by virtue of the fact that they are
indigenous. The question, of which groups are indigenous, and therefore
entitled to those rights which inhere only in indigenous peoples, is
therefore an important one.42
III THE MEANING OF INDIGENOUS

The question is however a vexed one, with no clear answer. One
possibility, and that favoured by numerous governments,43 is that
indigenous peoples are no more and no less than the pre-colonial
inhabitants of a country.44
40 Convention Concerning Indigenous and Tribal Peoples in Independent Countries (1989).

41 See Bennett & Powell (note 3 above) in respect of land; SJ Anaya ‘The Native Hawaiian
People and International Human Rights Law: Towards a Remedy for Past and Continuing
Wrongs’ (1994) 28 Georgia LR 309 (self-determination).
42 The South African San Institute Annual Review 1999/2000 notes that a statement was made by
the South African representative to the Human Rights Commission, in March 2000, which
acknowledges the presence of indigenous people in South Africa and endorses the UN Draft
Declaration on the Rights of Indigenous Peoples. The report further says that Dr Nyameko
Barney Pityana, the then-Chairperson of the South African Human Rights Commission,
pressed for the recognition of indigenous peoples throughout Africa to the African
Commission on Human and Peoples’ Rights. Ibid 29. The Indigenous Peoples of Africa
Co-ordinating Committee (IPACC) Annual Report 1999 3 records that then Deputy-President
Thabo Mbeki also acknowledged the presence of indigenous peoples in South Africa when he
said, during the much-publicised land restitution ceremony to the Khomani San, in 1999:
‘What we are doing here in the Northern Cape is an example to many people around the
world. We are fulfilling our pact with the United Nations during this decade of Indigenous
People’. The understanding, in each of these reports, is that the speakers were acknowledging
the presence of indigenous peoples distinct from the majority black African population.
43 See note 33 above; Barsh (note 32 above).
44 This understanding echoes that in ILO Conventions 107 of 1957 and 169 of 1989. The scope of
the ILO definitions is deliberately broader, for they include also ‘tribal’ peoples. Convention
107 has been described as a response to labour discrimination in Latin America. See Barsh
(note 32 above) 2.
The ‘pre-colonial’ definition does not suffice for all regions of the
world, however. There are regions in which, if indigenous were to be
equated with ‘pre-colonial’, numerous claimant-groups would be auto-
matically excluded. What distinguishes these regions from those countries
in which aboriginal title has been developed and applied, is that in the
latter, the ‘colonists’ that settled the territories constituting the modern-
day nation-state are today numerically, and consequently politically,
dominant. In other regions, former colonial territories have been
‘returned’ to their pre-colonial inhabitants, which today are therefore,
as nations, regarded as having achieved self-determination. Since the
entire, or dominant, populace, is itself of pre-colonial origin, it is more
difficult for specific groups within the national polity to claim indigenous
status. For, if all members of a national society are indigenous, there is
obviously no special significance to being indigenous. Indigenous then is
merely a fact that describes all members of the population, but cannot
serve to vest particular members with rights that other members do not
enjoy. Where all groups within a society are indigenous, it would be
meaningless to assert that some groups enjoy rights, not shared by others,
by virtue of their indigenous status. It therefore serves governments well,
in some countries, to invoke the ‘blue water’ test as the determinant of
indigenous identity, for it enables them to deny the existence of
indigenous groups distinct from other sections of the national popula-
tion.
It is precisely in order to avoid the injustice that might result from a
definition that equates indigenous with pre-colonial, that alternate
definitions proposed at the international level are more nuanced. These
definitions seek to deny affected governments (those with peoples
recognised as indigenous by the international community) the opportu-
nity to claim that all the inhabitants of their countries are indigenous, and
thereby avoid their responsibilities to particular groups within that
society. The definition that has gained the widest,45 albeit not uncritical,46
acceptance is that formulated by Jose Martinez Cobo, the first United
Nations Special-Rapporteur on discrimination against indigenous
peoples:47
45 According to numerous academic commentaries, and the websites of the United Nations
Development Programme (UNDP) (<http://www.undp.org/csopp/CSO/NewFiles/ipabout-
def.html>) and the NGO International Working Group on Indigenous Affairs (IWGIA)
(<http://www.iwgia.org/sw641.asp>).
46 It has been criticised as both ‘underinclusive’ and ‘overinclusive’: Wiessner (note 33 above) 19-
20. See also Special Rapporteur Miquesl Alfonso Martinez’s criticisms in his second progress
report on Discrimination against Indigenous Peoples UN Doc E/CN.4/Sub.2/1995/27 (1995)
para 95ff.
47 Final report on the Study of the Problem of Discrimination against Indigenous Populations UN
Doc E/CN/4/Sub.2/1986/7/Add.4.
98 (2004) 20 SAJHR
Indigenous communities, peoples and nations are those which, having a historical
continuity with pre invasion48 and pre colonial societies that developed on their
territories, consider themselves distinct from other sectors of the societies now prevailing
in those territories, or parts of them. They form at present non dominant sectors of
society and are determined to preserve, develop and transmit to future generations their
ancestral territories, and their ethnic identity, as the basis of their continued existence as
peoples, in accordance with their own cultural patterns, social institutions and legal
systems.49
Although indigenous organisations have themselves expressed opposi-

tion to the adoption of a single definition at this point in time,50 and
emphasise the importance of self-identification,51 judicial bodies neces-
sarily need objective criteria by which to determine whether an individual
or group is entitled to rights that vest exclusively in indigenous peoples. If
that were not the case, one could ‘become’ indigenous by self-
proclamation.
The three central elements of the Martinez Cobo definition, all of
which must be present, are: prior presence; non-dominance; and cultural
difference.52 The definition suggests that all indigenous claimant groups
must, as a matter of fact, have been present prior to other national
groups in the nation-states of which they today form a part.53 Prior
presence, though necessary, is not sufficient, for the indigenous
48 The Cobo definition implicitly rejects the ‘blue-water’ test by its inclusion of ‘pre-invasion’
societies. This aspect of the definition is particularly criticised by Martinez (note 46 above)
paras 97 105.
49 Alternate definitions have been formulated by numerous academic scholars, by Erica Irene-
Daes, a former Special Rapporteur to the Commission on Prevention of Discrimination and
Protection of Minorities, and by the World Bank. The only binding definitions are those in
ILO Conventions 107 and 169 (note 44 above). The elements of non-dominance and cultural
difference are common to most definitions, even though the World Bank definition is
somewhat broader, for its primary concern is with communities who traditionally rely on
subsistence production. The various definitions are available on the UNDP website (note 45
above).
50 See for example the submissions by the Aboriginal and Torres Strait Islander Commission to
the UNWGIP, who feel that a settled definition at this time will be precipitate. Standard-
Setting Activities: Evolution of Standards Concerning the Rights of Indigenous People: the
Concept of ‘Indigenous Peoples’ UN Doc E/CN.4/Sub.2/AC.4/1996/2/Add.1, 1.
51 ILO Conventions 107 & 169, the United Nations Draft Declaration on the Rights of
Indigenous Peoples (UN Draft Declaration) E/CN.4/Sub.2/1994/2/Add.1, as well as the
Martinez Cobo report (note 47 above) all emphasise the importance of self-identification.
52 The UNWGIP appears to accept the central role played by these elements. See in this regard
the note by EA Daes, in her capacity as Chairperson-Rapporteur of the UNWGIP, on criteria
which might be applied when considering the concept of indigenous peoples. Standard Setting
Activities: Evolution of Standards concerning the Rights of Indigenous Peoples New
Developments and General Discussion of Future Action UN Doc E/CN.4/Sub.2/AC.4/1995/3.
53 If all that was required was that a group have settled a particular parcel of land first, it would
allow for an anomalous situation in which post-colonial ‘settlers’ could potentially also lay
claim to an indigenous identity. The ILO report (note 35 above) 11 records that a group of
Afrikaners unsuccessfully attempted to claim indigenous status before the UNWGIP.
Indigeneity must therefore be determined by reference to the nation-state, peoples having a
prior presence in all or part of the territory that today comprises the nation-state, and only
once that criterion is satisfied, need a connection with a specific area of land be established in
order to claim title to that land.
population may of course, numerically, and therefore politically,

dominate a non-indigenous minority. In a situation such as this, it
would likely constitute unfair discrimination were an indigenous majority
able to claim special rights that the non-indigenous minority does not
also enjoy. Conversely, if an indigenous majority is controlled by a non-
indigenous minority in an undemocratic state, the majority’s indigenous
identity would be legally relevant, and would entitle its members to claim
rights based on their indigenous status.54 Something additional to ‘prior
presence’ must therefore distinguish certain sections of a national
population, in order for a particular group to be able to claim an
‘indigenous’ identity that others lack, and a consequent entitlement to
‘indigenous’ rights, including aboriginal title.
These additional elements are non-dominance and cultural difference.
The former is, in my opinion, the raison d’être of all minority rights, but
it applies with particular force in the context of indigenous rights. The
latter is what most distinguishes indigenous rights and claimants from
‘ordinary’ minority rights and claimants.
Indigenous rights, like all rights that distinguish (and to some extent
‘prefer’) some members of a society from others, can only ever be
regarded as necessary because of the particular vulnerability of the
designated group to majoritarian decision-making. It is because
indigenous communities are not able to realise their aspirations through
the ordinary democratic processes in the ways in which majorities are in
theory able to do, because they are non-dominant, that there is a need for
differential treatment in the form of the recognition of indigenous rights.
The collective effect of indigenous rights is to enable indigenous peoples
to realise their aspirations and to lead the lifestyles of their choice, to the
fullest extent possible within the modern nation-state. It is an acknowl-
edgement of the extent to which they are politically marginalised
communities, dependent, for the realisation of their aspirations, on the
beneficence of the majority. It is because, in the absence of such rights,
their futures (possibly even their survival) as distinct peoples, is at the
mercy of majoritarian decision-making.55
54 As was the case in apartheid South Africa, when the international community recognised the
majority’s right to self-determination, partly on the basis that they were regarded as being the
indigenous inhabitants of South Africa. In Bolivia too, indigenous Indians are in the majority,
constituting 55 per cent of the population, and until recently enjoyed fewer rights in a society
dominated by the non-indigenous minority. See Wiessner (note 33 above) 9.
55 In Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of
Certain Provisions of the Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC) para 87,
Sachs J explained the rationale behind minority rights thus: ‘[T]he central theme that runs
through the development of international human rights law in relation to protection of
minorities is that of preventing discrimination against disadvantaged and marginalised groups,
guaranteeing them full and factual equality and providing for remedial action to deal with past
discrimination. . . The weight of international law [according to Capotorti] . . . should be in
favour of the dominated and not the dominating minorities’.
100 (2004) 20 SAJHR
As a result, if indigenous peoples constitute a numerical majority, and

are in control of their own destinies through the ordinary democratic
process, the fact that they are indigenous does not have any legal
consequence. For, notwithstanding the fact that they are the pre-colonial
or pre-invasion inhabitants of a country, they have no need of the special
protections accorded indigenous people.56
These propositions are best illustrated by reference to an imaginary
example. Say there is a territory of approximately 1000km2. Its
inhabitants call it Zog. The only inhabitants in the territory are a people
who call themselves Zogians. They number 1000, and live together in ten
bands of about 100 members each. Their economy is a subsistence one,
based on hunting and gathering. They all freely move through the
territory of Zog as the seasons and the movement of animals dictate.
They practice this lifestyle undisturbed by outsiders for centuries.
Memories of where their ancestors originated fade away. The territory
is the only land and home they know, and they come to regard the land
not only as a resource, but in a spiritual sense as well. It is the land of
their ancestors, and its geographic features are invested with spiritual
meaning. One day outsiders arrive. The outsiders are in search of a new
home. They rapidly move through the territory of Zog, settling in the
areas that most take their fancy. The Zogians try to resist this conquest,
but most are killed by the superior firepower and diseases brought by the
outsiders. The surviving Zogians (100 only) retreat to a small, relatively
inhospitable corner of the territory, where they continue practising their
hunter-gatherer lifestyles to the extent possible. The economic and
spiritual traditions/practices that survive are those capable of being
exercised on the land in question. Among the activities they pursued (and
continue to pursue) is whaling. They whale for subsistence purposes only.
With the passage of time it is not only the Zogians who practice whaling.
Some of the outsiders engage in whale hunting for subsistence purposes
also. The extent to which they do so is much the same as that of the
Zogians.
Decades later, the outsiders decide to ban whale hunting. Their reason
for so doing is to conserve whales, whose survival is threatened as a result
of excess whaling. In trying to resist the government’s ban on whaling,
56 That non-dominance is an essential prerequisite of successfully establishing an indigenous

identity for legal purposes, appears also from both the preamble and substantive provisions in
the ILO Conventions 107 & 169 and the UN Draft Declaration. The statements contained in
the preamble, and many of the specific provisions would be redundant if indigenous peoples
were able to participate effectively in government, which they would be able to do in a
democratic state if they constituted a numerical majority. See for example arts 19-20 of the UN
Draft Declaration, and art 6 of ILO Convention 169. It is also an element emphasised by a
number of writers, such as Benedict Kingsbury, despite his attempt to fashion a broader
definition than that currently supported by the United Nations and many national
governments. See B Kingsbury ‘ ‘‘Indigenous Peoples’’ in International Law: A Constructivist
Approach to the Asian Controversy’ (1998) 92 American J of Int L 414, 453.
which will have a significant impact on the economic well-being of both

the Zogians and some outsiders, it is only the Zogians who can claim to
enjoy a ‘right’ to whale. The outsiders cannot claim such a right. For it is
only the Zogians, by virtue of their indigenousness (ie, by virtue of the
fact that they inhabited the territory before the outsiders arrived, and by
virtue of the fact that whaling was a practice they engaged in before
outsiders arrived), who can claim to enjoy a right to whale. The very real
interest that the non-indigenous outsiders have to be permitted to
continue their whaling activities, is not legally enforceable as a right of
indigenous peoples.
Compare the following example. The facts are identical, except that the
land was never colonised by outsiders. The Zogians remained in control
of their entire territory. With the passage of time, they established links
with the outside world. As a result of these links, the nature of Zogian
society changed gradually. Some Zogians continued to practise activities
like hunting and whaling, while others gradually abandoned these
practices in favour of alternative economic activities, for example wage-
employment. Small numbers of outsiders move into the territory of Zog,
and some take up whaling after the fashion of the Zogs that continue to
do so. For the reasons mentioned in the previous example, the
government of Zog decides to ban whaling. Can certain communities
that continue to practice whaling claim a right to do so, by virtue of the
fact that they are an indigenous community? The answer must surely be
‘no’. With the passage of time the changes in Zogian society may have
resulted in the formation of distinct minority groups, groups that began
to dress differently, pursue different lifestyles and so forth. But all
Zogians are indigenous. Those Zogians that wish to continue whaling are
bound by the decisions of the democratically-elected Zogian government.
As a result, one indigenous group cannot claim the special rights
bestowed on indigenous people from another indigenous group. They
cannot claim a right to continue whaling because they are indigenous. It
would wholly inconsistent with the principles of democratic decision-
making if they were able to do so.
It is of course true that ‘ordinary’ minorities57 are equally vulnerable to
democratic decision-making, yet they cannot claim the rights enjoyed by
indigenous peoples (including, perhaps, the right to self-determination).
Successive Special-Rapporteurs to the United Nations on the Study of
Discrimination against Indigenous Peoples have been at pains to
57 The definition of minorities by Francesco Capotorti is very similar to Martinez Cobo’s

definition of indigenous peoples. According to Capotorti, a minority is ‘a group which is
numerically inferior to the rest of the population in a State, and in a non-dominant position,
whose members possess ethnic, religious or linguistic characteristics which differ from those of
the rest of the population and who, if only implicitly, maintain a sense of solidarity directed
towards preserving their culture, traditions, religion or language’. F Capotorti Study on the
Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities UN Doc E/CN.4/
Sub.2/384/Rev.1 para 568.
102 (2004) 20 SAJHR
emphasise that there is a very significant distinction between ‘ordinary’

minorities, and indigenous peoples. Almost all indigenous peoples are, in
a numerical sense, minorities, but all numerical minorities are most
certainly not indigenous peoples. Indigenous peoples, so far as the term is
understood and applied to mean the beneficiaries of special rights, are a
distinctive minority, who by virtue of their particular histories (most
significantly the fact that they are the ‘first peoples’, or at least prior
peoples, of a particular country), their aspirations and their lifestyles, are
different from the majority population of the countries in which they live.
That indigenous peoples are the holders of more extensive rights than
minorities is a recognition of the extent of the ‘difference’ between them
and the majority. So far as their histories and present aspirations and
lifestyles are concerned, compared with that between ‘ordinary’ minorites
and the majority, the difference is as a general rule far greater.
Indigenous peoples, moreover, have typically suffered oppression, and
threats to their cultural identity in the recent past (which in some cases
continue to the present) to a degree that most ‘ordinary’ minorities have
not.58 Indigenous peoples both lead and wish to continue leading
lifestyles that are quite distinct from those of the majority.59 This is not,
as a general rule, true of ‘ordinary’ minorities. In sum, indigenous peoples
are, in their histories, present cultures and future aspirations, significantly
different from the dominant majority within the population, including
‘ordinary’ minorities.
The requirement of cultural difference was repeatedly emphasised by
Martinez Cobo. In his report to the Sub-Commission on the Prevention
of Discrimination and Protection of Minorities, he stated that ‘it is clear
that indigenous peoples consider themselves to be different from the
other groups that form the society of present-day nation states in which
they now find themselves included’. In a similar vein, he later states that
‘the special position of indigenous peoples within the society of nation-
states existing today derives from their historical rights to their lands and
from their right to be different and to be considered different’.60
Unfortunately, despite, or perhaps because of, the definition proposed
by Martinez Cobo, the precise boundary between ethnic minorities and
indigenous peoples remains a difficult one to draw. A more recent
Special-Rapporteur, Miquesl Alfonso Martinez, criticises the tendency to
58 Many indigenous peoples found themselves the targets of deliberate extermination campaigns
by early settlers. The appalling atrocities perpetrated against the San are recounted by S Gall
The Bushmen of Southern Africa: Slaughter of the Innocent (2001). For more recent examples of
the types of discrimination suffered by indigenous peoples, see Wiessner (note 33 above).
59 Despite the lack of definition in the UN Draft Declaration, the importance of the element of
difference clearly appears from the preamble, the opening sentence of which affirms ‘that
indigenous peoples are equal in dignity and rights to all other peoples, while recognizing the
right of all peoples to be different, to consider themselves different, and to be respected as
such’.
conflate ‘indigenous’ with ‘traditional’, in the sense that peoples who wish
to pursue so-called ‘traditional’ cultural and socio-economic lifestyles
that are different from those of the modern industrial society, are
incorrectly treated as indigenous when in fact they are not so.61 He
attributes this development in part to the Martinez Cobo definition,
because of its reference to pre-invasion societies.
Following on from this, Alfonso Martinez states, but with reference to
only a single example, that confusion as to the precise identity of
indigenous has been heightened by the tendency to ‘regard as indigenous
peoples certain ethnic groups in African countries which at most might
possibly be regarded only as national or ethnic minorities (as, for
example, in the case of the Sudan)’.62
In analysing the plight of specific indigenous groups around the world,
the African example he uses is that of the San of Southern Africa.
Alfonso Martinez acknowledges their ‘potential status as indigenous
people’, but declines to identify them as the indigenous peoples of the
region.63 Instead, Alfonso Martinez states ‘that in the case of the various
African nationalities, ethnic groups, peoples and minorities, conceptual
debates over whether they are ‘‘minorities’’ or ‘‘indigenous peoples’’ are
less important than finding the practical solution to their daily
problems’.64 His suggestion that there are perhaps no groups in Africa
that can claim an indigenous identity distinct from other sections of their
national populace does not appear to have been endorsed by scholars, the
UNWGIP or by indigenous claimant groups in Africa.65 Nevertheless,
the views of the UNWGIP and national and international non-
governmental organisations certainly supports the view that not all
peoples in Africa that suffered colonial conquest can on that account
alone claim indigenous status in the legal sense.66 Under the prevailing
understanding of indigenous, it seems to be accepted that peoples
indigenous to Africa are not necessarily indigenous to a particular
country within Africa.

62 Ibid para 123.
63 Ibid para 317. Alfonso Martinez considers ‘the difficulty bordering on the insuperable of
applying to the African context certain criteria that have recently come into use relating to the
‘‘autochthonicity’’, ‘‘aboriginality’’ and ‘‘indigenousness’’ of certain human groups originating
on that continent’. Ibid para 318.
64 Ibid para 329.
65 In her final paper to the UN Sub-Commission on the Promotion and Protection of Human
Rights, Special Rapporteur Erica-Irene Daes discusses the problems faced by the San,
implicitly accepting their status as indigenous peoples. EA Daes Indigenous Peoples and their
Relationship to Land (2001) UN Doc E/CN.4/Sub.2/2001/21 para 36.
66 Groups generally regarded as indigenous in Africa include the Ogoni of Nigeria and the
Maasai of Kenya. Although the writers that identify them as such do not purport to claim that
they are the only potential claimants of indigenous status, their intention is clearly to exclude
most African peoples. See, for example, Wiessner (note 33 above) 12.
104 (2004) 20 SAJHR
Notwithstanding the views expressed by Miquesl Alfonso Martinez,

groups throughout Africa continue to identify themselves as the
indigenous peoples of the nation-states they reside in, and continue to
press for recognition of their rights as indigenous peoples, in particular
the right to land.67 In consequence, our courts may soon be required to
grapple with the issue of which peoples are, properly speaking, the
indigenous peoples of South Africa, and entitled on that account to claim
land, or engage in activities, that other peoples are not entitled to. Given
the lack of a universally-accepted definition, it is open to our courts, if
they are at all sympathetic to the notion of indigenous rights, to adopt
whichever of the proposed definitions they regard as most appropriate to
South African conditions and history or, if they prefer, to adopt an
entirely novel definition. If our courts were to prefer avoidance above
deliberation, the ‘pre-colonial’ definition associated with the North
American and Antipodal worlds would provide a ready solution. It is
clear, however, that this solution is not one that would do justice to the
complex nature of the enquiry at the international level, and is one that
could compromise the interests of indigenous peoples in other parts of the
world. Our courts surely have a responsibility to avoid easy answers that
may rebound adversely on the legitimate aspirations of peoples in other
parts of the world.
IV APPLYING THE DEFINITION TO SOUTH AFRICA

None of the scholarly articles68 on the subject of Aboriginal Title
published in South Africa so far address the definitional issue directly.
This appears to be because the writers accept that all communities
whose existence and presence predates European settlement, are
indigenous. In other words, that all black African69 South Africans,
as well as the present day descendants of the San70 and Khoek-
67 See for example the Indigenous Peoples of Africa Co-ordinating Committee (IPACC)
discussion on which groups constitute the indigenous peoples of Africa in the organisation’s
annual report for November 1998 to October 1999, and the examples of groups which claim an
indigenous identity (20, 21). The annual report describes the organisation as ‘a network of
community based organisations representing ethnic groups who see themselves as aboriginal/
indigenous populations that have been marginalised by colonial administrations and
contemporary African states’ (5).
68 Note 3 above.
69 The two most recent population censuses, of 1996 and 2001 respectively, continue to ask
individuals to identify themselves purely in terms of race. The racial categories employed are
African/Black, Coloured, White, Indian/Asian & Other.
70 The use of the term ‘San’ is controversial, despite the fact that it is the most commonly used
term in scholarly literature, and despite the fact that it appears to be gaining favour amongst
San communities. The term does have pejorative overtones, like the alternate terms ‘Bushman’
and ‘Basarwa’. ‘Bushmen’ is also common in academic literature, and its usage is also said to
be gaining in acceptance by San groups. San is a composite term coined by the Khoekhoe. The
San had no overarching collective identity, and therefore had no collective name for
themselves. San is variously said to mean ‘those who gather wild food’ or ‘aborigine’, while
Basarwa means ‘those who do not own cattle’. Kuru Development Trust & WIMSA Report on
Indigenous Peoples’ Consultation (1999).
hoe71 peoples, who today are generally regarded as forming part of the
broader ‘coloured’ population, all fit the international law ‘definition’ of
indigenous. All such groups would therefore, on their approach, in
appropriate cases be able to assert their aboriginal title to prevent
deprivation or dispossession of their ancestral land.
In articles not devoted to the subject of aboriginal title, opinion is
divided. In some articles, the predominant frame of reference is Khoesan
communities.72 In others, it is black African communities, such as the
Zulu.73
Including only or primarily Khoesan peoples in the definition of
indigenous is likely to prove highly contentious in South Africa, as the
following quotation demonstrates.
Writers (in the South African context) tend to concern themselves almost exclusively with
the Khoikhoi and San when they speak about the rights of indigenous people. . . . [There
can be no] justification for the view that the Khoikhoi, the Griquas and the San are the
only indigenous groups in South Africa. If these views are maintained, sceptics can be
excused for harbouring the suspicion that international instruments are not really
concerned with rectifying history’s wrongs, but rather with protecting those who
committed the wrongs by ensuring that the provisions of these instruments do not upset
the apple cart of the invaders.74
The definitions of indigenous thus far proposed under international

law all hinge on the existence of a non-dominant minority in opposition
to a dominant majority, a majority that is quite distinct, in both its
history and cultural identity, from the indigenous minority. In a
genuinely democratic state, an indigenous majority cannot claim
indigenous rights. The fact of indigeneity is not enough, for the necessary
threat posed by being an indigenous minority dominated by a non-
indigenous majority is not present.
Some writers are of the view that since black Africans are in the
majority in South Africa, they may not be able to lay claim to ‘minority’
rights.75 Somewhat inconsistently, the same writers are of the view that
the majority can lay claim to indigenous rights. Their approach attaches
insufficient weight to the necessary element of non-dominance in
71 Khoe (the Nama spelling) means ‘person’, while the plural Khoekhoe has been translated as
‘real people/real men’ or ‘men of men’.
72 To the chagrin of writers such as M Seleoane ‘Recognition of Indigenous Peoples in
International Law: Recent Developments’ in B de Villiers (ed) The Rights of Indigenous
People: A Quest for Co-Existence (1997) 1, 11.
73 J Wilson ‘Ethnic Groups and the Right to Self-Determination’ (1996) 11 Connecticut J of Int L
433 is of the view that as a non-dominant indigenous people, the Zulu enjoy the full spectrum
of indigenous rights, including rights to restitution of ancestral lands, political autonomy and
possibly even a right to full self-determination. Glavovic (note 26 above) considers both
Khoesan and black African communities indigenous, and entitled to rights similar to those
enjoyed by Native Americans in the context of the use of environmental resources.
74 M Seleoane ‘Recognition of Indigenous Peoples in International Law: Recent Developments’
in B de Villiers (ed) The Rights of Indigenous People: A Quest for Co-existence (1997) 1, 11.
75 TW Bennett, CH Powell & A Pillay ‘Constitutional Framework’ in LAWSA vol 32 Indigenous
Law (forthcoming). Compare Wilson (note 73 above), who does regard the Zulu as a non-
dominant minority, entitled to claim also minority rights.
106 (2004) 20 SAJHR
identifying indigenous rights-bearers, and defines ‘majority’ only in terms

of race. In contrast to the above position, it has been said that from a
cultural and linguistic perspective, ‘there is no clear majority population
in South Africa against which minorities need to be protected.
Linguistically and culturally speaking, there are only minorities in our
country’.76
If majority is defined only in terms of race, then black Africans
themselves are the majority, and it would seem nonsensical that one
group within that majority could claim indigenous status as against other
members of the majority. Similarly, if black South Africans were
culturally homogenous, comprising only a single cultural group, it would
equally make no sense for particular communities to claim recognition of
their indigenous status from fellow members of that self-same group.
Since South Africa is not culturally homogenous, but heterogeneous,
does that make a difference? I would submit that it does not. If all groups
are non-dominant, and all enjoy equal rights to participate in decision-
making in a democratic state, what is the dominant majority from whom
recognition of the claimant-groups indigenous rights is to be obtained? It
might be possible to construct an argument that the majority comprises
the collective of all the minority groups acting in concert in ways that are
different to the wishes or aspirations of a particular minority, but even
then, it still seems problematic to permit one black African group to
obtain ‘indigenous’ rights that other black African groups will not be
similarly entitled to claim. It does not make sense that one black African
group, whose history, culture, and current socio-economic condition is
for the most part similar to that of other black African groups,77 could
claim indigenous rights from fellow black Africans, the implication being
that the latter are in some way not indigenous. All are ‘pre-colonial’, all
are culturally similar, and all are non-dominant. In a situation such as
this, it seems most appropriate that the language of minorities and
minority rights is instead employed. For the definition of indigenous
proposed by Martinez Cobo requires difference. A minority must be
different from the majority.78 In the opinion of some, a minority must
76 Sachs J in Ex parte Gauteng Provincial Legislature (note 55 above) para 81.

77 On the origins of and movement of black African peoples throughout Southern Africa, see J
Diamond Guns, Germs and Steel (1997) 376ff.
78 J Crawford ‘The Aborigine in Comparative Law’ (1987) 2 Law & Anthropology 5, 8 writes:
‘But it is suggested that it is only useful to talk of ‘‘aborigines’’ as distinctive non-immigrant
groups, less than the whole population of the state, with elements of culture or lifestyle
opposed to the ‘‘majority’’ or ‘‘official’’ or ‘‘standard’’ culture and legal system of the state. . . .
Where the various groups which make up the whole population of the state are, or are to be
taken as, coeval, they are ‘aboriginal’ groups only in a secondary sense’.
have suffered or must suffer discrimination and oppression at the hands

of the majority.79
All black African groups suffered similar treatment under colonialism.
All suffered similar treatment under apartheid. All engage in cultural
practices that are largely similar. Black African cultures in South Africa
have in fact been described as far more similar than they are different.80
All share a common origin.81 All are similarly placed economically. The
major difference is one of numbers. There are, for example, far more Zulu
than there are Pedi. There is therefore a greater chance that there will be
more effective participation by Zulu in decision-making structures. This
fact alone does not mean that it is appropriate for the Pedi to distinguish
themselves from the Zulu by claiming an entitlement to indigenous rights
that the Zulu would not be able to claim.
The jurisprudence on indigenous rights simply does not cater for
situations in which the majority, even if it is comprised of an
agglomeration of similar minorities, in a democratic state, can seek
special treatment on account of its own indigeneity. Taken to its logical
extreme, it would mean that most groups would in fact be entitled to
claim indigenous rights. It would mean that most groups might, as a
result, be entitled to claim either a right of self-determination, or at least
political autonomy.82 It would mean that the form of government
entrenched in the Constitution, in terms of which decision-making is to
take place principally at national and provincial levels, could be
circumvented, as each group insists on its right to make decisions for
itself, even when these run counter to decisions taken, for the benefit of
all South Africans, by the national democratically-elected government.
Do these same arguments hold for the Khoesan? The Khoesan were,
and many of their descendants arguably remain, different. Many
communities of Khoesan origin constitute recognisably distinct groups
within South Africa, distinct from both black African and non-
indigenous minority groups. The Khoesan are moreover acknowledged
as being the first known inhabitants of Southern Africa.83 There is
79 This aspect is central to an alternate definition proposed by Wiessner (note 33 above) 21:
‘Indigenous communities are thus best conceived of as peoples traditionally regarded, and self-
defined, as descendants of the original inhabitants of lands with which they share a strong,
often spiritual bond. These peoples are, and desire to be, culturally, socially and/or
economically distinct from the dominant groups in society, at the hands of which they have
suffered, in past or present, a pervasive pattern of subjugation, marginalization, dispossession,
exclusion and discrimination’.
80 R Beck ‘The History of South Africa’ The Diagram Group Encyclopaedia of African Peoples
(2000) 10.
81 Ibid.
82 See art 6 of ILO Convention 169, and arts 3-4 of the UN Draft Declaration.
83 It is really the San that are described as the aboriginal peoples of Southern Africa by historians
and anthropologists. Since the Khoekhoe are believed to be an off-shoot of one San group, the
Tshu-Khwe, who abandoned their hunter-gatherer lifestyle in favour of a predominantly
pastoralist one, little turns on this distinction in my view. R Elphick Khoikhoi and the Founding
of White South Africa (1975); TRH Davenport South Africa: A Modern History 4ed (1991);
Diamond (note above) 393ff.
108 (2004) 20 SAJHR
evidence of San presence in South Africa dating back 20-30 000 years, in
contrast to the approximately 2000 years that black African groups are
thought to have inhabited South Africa.84 And, on the international
arena, indigenous groups often refer to themselves as the ‘first peoples’ of
a region or continent. Their ancestors’ lifestyles at the time of
colonisation were different to those of black African groups;85 their
numbers were and remain significantly smaller;86 their cultural practices
were quite distinct; their languages were quite distinct; and their histories
and experiences under colonial rule and apartheid were different to that
of the black African majority. The collective effect of these differences
was that they came to be identified as ‘coloured’87 during apartheid,
rather than African or Black.88
Most significantly, it is Khoesan groups that have begun to promote
their identity as the first peoples of South Africa. The Griqua, for
example, claim to have been recognised as such by the UNWGIP.89
Organisations representing the interests of San groups in South Africa
have emerged, which assert that the San are the indigenous peoples South
Africa.90 An ILO report published in 1999,91 equates indigenous with
‘first peoples’, and identifies surviving San and Khoekhoe communities
as the indigenous peoples of South Africa. Implicit in the Richtersveld
Community’s claim is an assertion of indigenous identity, and the
Richtersveld Community, a Nama Community, is of Khoekhoe
descent.92
84 Davenport (note 83 above) 3; Beck (note 80 above) 10.

85 The San were predominantly hunter-gatherers, the Khoekhoe predoiminantly pastoralists, and
black African groups agri-pastoralists.
86 ‘Coloureds’ account for approximately nine per cent of the current population, and it is
probable that most identifiable Khoesan descendants classified themselves as ‘coloured’ in the
most recent population census. At the time of colonisation, the San throughout Southern
Africa are estimated to have numbered in the region of 20 000 and the Khoekhoe between 200
000 and 450 000. Elphick (note 83 above) 21.
87 The extent to which ‘coloured’ was an imposed versus a self-created identity, is contested. M
Adhikari ‘The Sons of Ham: Slavery and the Making of Coloured Identity’ (1992) 27 SA
Historical J 95. ‘Coloured’ was defined in the Population Registration Act 30 of 1950 as ‘a
person who is not a White person or a Black’.
88 Quite why this occurred is unclear, for the definition of ‘black’ in early apartheid legislation
includes descendants of the Khoesan. For example, ‘Bantu’ in the Population Registration Act
30 of 1950 was defined as ‘a person who is, or is generally accepted as, a member of any
aboriginal race or tribe of Africa’. In both the Pneumoconiosis Compensation Act 64 of 1962
and the Occupational Diseases in Mines & Work Act 78 of 1973, ‘Black’ included ‘any person
belonging to . . . the aboriginal tribes or races of Africa, including Bushmen, Hottentots,
Korannas and Natives’. In ILO Report (note 35 above) 15 it is said that ‘[u]nder apartheid, the
State enforced a policy whereby all Khoe and San people who had not already been
assimilated into other populations were forcibly registered as coloured’.
89 ‘Victory as Griquas Gain First Nation Status’ Sunday Times (9 September 1998).
90 The home page of the South African San website states that ‘The San are the aboriginal people
of Southern Africa’: <http://www.san.org.za/>.
91 Note 35 above.
92 A fact noted by the SCA in its judgment in the Richtersveld case (note 6 above) para 12ff.
If it is accepted that the differences between the Khoesan and black

African peoples would have been, at the time of colonisation at least,
sufficient to meet the criteria for indigenous as proposed by Martinez
Cobo, the question that then needs to be asked is whether it is today
appropriate, or necessary, to recognise the modern day descendants of
the Khoesan as the indigenous peoples of South Africa. Is it appropriate,
in light of South African history, and is it necessary, given the present
aspirations and socio-economic conditions of the surviving identifiable
Khoesan?
This question is an important one, for if the answer is yes, the result
will be to introduce degrees of indigeneity into the South African national
consciousness, and the effect may be more harmful than it is good. While
recognition as being the first peoples, the indigenous peoples of South
Africa, may be empowering for Khoesan descendants on both a cultural
and legal level, the effect for black South African groups may be
disempowering, as the quotation from Seleoane, criticising a definition
that limits ‘indigenous’ to Khoesan communities, demonstrates. And if
this is its effect, which is all the more probable if it is accompanied by
‘special treatment’ for Khoesan communities not claimable by black
African communities, then the propriety of recognising Khoesan as the
indigenous peoples is questionable.
Given South Africa’s racially polarised history, a history that favoured
minorities at the expense of the majority, introducing legal concepts that
rest on accepting a claimant-group’s indigenous status, and therefore, the
majority’s non-indigenous status, is arguably inappropriate. While many
governments talk of the importance of promoting a spirit of national
unity and a sense of national identity, these are real concerns in South
Africa on account of its apartheid past. Moreover, in most other parts of
the world indigenous communities are also distinguished from other
groups within their national societies in that they are markedly more
economically disadvantaged than other groups.93 Their need for land, as
an economic resource, is therefore greater than that of most other groups.
The same cannot, as a general rule, be said in South Africa. It is difficult
to assert that, from a socio-economic perspective, the needs of surviving
identifiable San and Khoe peoples are greater than those of the majority
black African population. They are equal, certainly, but not necessarily
greater.94 It is accordingly very difficult to justify differential access to
93 Wiessner (note 33 above) describes the situation of specific indigenous peoples in all parts of
the world.
94 ILO Report (note 35 above) says that ‘[I]t is hard to generalize about problems facing
indigenous South Africans as their circumstances vary substantially. A point of departure is to
recognize that Nama and San people, in particular, constitute some of the poorest of the poor
in South Africa’. The 1995 October Household Income Survey states that ‘African households
are the poorest of all in the Northern Cape: 38% have incomes between R0 and R6839 per
annum, compared with 24% of coloured and 2% of white households’. What the survey does
not indicate is where indigenous-claimant groups stand relative to the broader ‘coloured’ and
‘African’ population groups.
110 (2004) 20 SAJHR
land, or other resources, for equally impoverished communities, simply

on the basis that one community’s forebears settled in South Africa 30
millennia ago, and another community’s, only three millennia ago.
What does distinguish surviving Khoesan communities from black
African communities, is the degree of acculturation each has experienced.
Their need for some form of urgent action to assist in the prevention of
further acculturation is arguably far greater than it is for most black
African communities. Ironically, however, it is this very fact that may
ultimately make any grant of ‘indigenous rights’ virtually meaningless for
Khoesan peoples. It is not only that few communities of Khoesan origin
retain their traditional lands; few retain their traditional customs,
practices and even languages.95 Moreover, unlike black African commu-
nities whose traditional leaders enjoy some measure of participation in
decision-making at provincial and national level,96 Khoesan leadership
structures have largely disintegrated.97 However, to the extent that
relationships with land and cultural practices do survive, some form of
remedial action and redress may assist in the prevention of further
acculturation.98 As with indigenous claimant groups around the world,
access to land is one of the primary concerns of indigenous claimant
groups in South Africa.99 Claims to land would likely be of primary
importance to indigenous claimant groups, because it is land that
provides the means for subsistence, and it is land that enables indigenous
peoples to continue practising lifestyles that are ‘different’ to those
aspired to by the majority, especially when indigenous peoples do not
aspire to the 40-hour wage-earning working week that typifies most
95 Nama is the only viable Southern Khoesan language still spoken, with approximately 5000-10
000, mostly adult, speakers. There are only about 30 San still able to speak N/u, the language
of the Khomani San. ILO Report (note 35 above) 6. The Khoe and San National Language
Body was created in 1999 by the Pan South African Language Board (established by Act 59 of
1995) in order to promote, develop and extend the use of the Khoe and San languages in South
Africa.
96 National House of Traditional Leaders Act 10 of 1997; s 81 of the Local Government:
Municipal Structures Act 117 of 1998.
97 ILO Report (note 35 above) 20.
98 The UN Draft declaration recognises that indigenous peoples have the right to maintain and
develop their distinct identities (art 8), to practise and revitalise their cultural traditions and
customs (art 12), to revitalise, use, develop and transmit to future generations their histories,
languages, oral traditions, philosophies, writing systems and literatures, with the assistance of
the State when necessary (art 14), to education in their own culture and language (art 15), to
own, develop and control their traditional lands (art 26), and to the restitution of traditional
lands, territories and resources of which they have been deprived without their full and
informed consent (art 27).
99 ILO Report (note 35 above) 20 says that ‘[t]he most pressing concern for indigenous
communities is securing their land base, and where possible, re-establishing access to natural
resources necessary for pastoralism, hunting-gathering or new land-based ventures such as
farming’.
industrialised and industrialising economies.100 Where such redress and

remedial action is sought by groups claiming an indigenous identity in
South Africa, particularly where what is being sought is access to land,
would the doctrine of aboriginal title really avail them much? Does the
doctrine of aboriginal title in fact provide a viable means for groups in
South Africa to obtain restitution of land? In my opinion, the answer is
once again ‘no’, both given the requirements that must be proven before
title is found to exist, and given the true nature of the doctrine.
V LIMITATIONS OF THE DOCTRINE OF ABORIGINAL TITLE

The most serious limitation on the doctrine as a form of redress, is the
fact that the doctrine protects only existing relationships with land,
relationships that exist by virtue of the fact that at the time the colonising
power asserted its sovereignty, the claimant group was in occupation of
the particular territory claimed, and by virtue of the fact that the claimant
group has remained in occupation of that territory to the present day.101
In the leading Australian case of Mabo v Queensland, Toohey J
explained aboriginal title in the following terms: ‘Traditional title arises
from the fact of occupancy, not the occupation of a particular kind of
society or way of life. So long as occupancy by a traditional society is
established now and at the time of annexation, traditional rights exist’.102
Academics have described the function of aboriginal title in Australia as
follows: ‘In Australia, native title law recognises and protects what
remains of the unique relationship to land of the indigenous people’.103
The requirement of present occupation is not as explicitly stated in
Canadian jurisprudence. On a cursory reading of Delgamuukw, it appears
as though it is occupation at the time of sovereignty that is of sole
importance, rather than the fact of occupation in the present day. In fact
however, although not stated as a separate requirement, it is clear that the
judgment presumes a claimant group in present occupation of the land
claimed.104 In addition, in order to enjoy title to the land, it is necessary
that the fact of present occupation be attributable to occupation on
100 See the discussion on the 40-hour working week versus flexible employment in ILO report
(note 35 above) 26.
101 This is the general tenor of the majority judgment in Delgamuukw (note 1 above). The
minority judgment of La Forest J; and L’Heureux-Dubé J state explicitly that: ‘Aboriginal
title’ is based on the continued occupation and use of the land as part of the aboriginal
peoples’ traditional way of life’ (para 190).
103 Reilly (note 3 above) 513 (my emphasis). Later in the same article, Reilly writes: ‘The main
practical significance of Mabo was that it left open the possibility that to the extent
indigenous communities have survived dispossession from their land, they possess a title to
the land based on their traditional laws and customs’. Ibid 515.
104 This is generally apparent in the court’s discussion of the test for aboriginal title. Delgamuukw
(note 1 above) paras 143-54, especially para 153. La Forest J, in a minority judgment, says
that ‘ ‘‘[A]boriginal title’’ is based on the continued occupation and use of the land as part of
the aboriginal peoples’ traditional way of life’ (para 190).
112 (2004) 20 SAJHR
sovereignty by the claimant group’s ancestors. That it is the protection of

present relationships with the land that is at the heart of the doctrine,
although subject to the limitation that the occupation date back to the
time of sovereignty, appears also from the writings of commentators
critical of the limitation, who feel that it places more onerous
requirements on aboriginal possessors than on possessors under the
common law.105
Aboriginal title therefore does not, unlike the Land Rights Act,
operate to restore land or land rights to communities whose physical
relationship with their ancestral land has been severed.106 Aboriginal
title, as a judicially-developed doctrine, exists only where communities
have succeeded in maintaining their relationship with the land as a result
of their continued occupation of that land. Aboriginal title may
consequently enable communities to resist imminent dispossession, or
obtain compensation for present dispossession.
Even if the doctrine were to be restitutionary in its effect, it would still
not serve to reunite Khoesan communities with their ancestral lands, for
distinct Khoesan communities, that have maintained their ‘pre-colonial’
identities as required by the doctrine,107 for the most part no longer
exist.108 The Richtersveld community is an exception, and it was described
by the Supreme Court of Appeal as a community ‘living in the margin of
history on the edge of the country’. The community was as a result largely
ignored by successive governments, and was left in undisturbed possession
for most of its post-colonial history. These facts are so rare, as a result of
South Africa’s colonial and apartheid past, that the court described the
case as ‘unique’.109 And even the Richtersveld community does not meet
the doctrine’s rigorous requirements, for the Richtersveld community was
dispossessed of the land some 80 years ago.110 Although the case of
105 K McNeil ‘Aboriginal Title and Aboriginal Rights: What’s the Connection?’ (1997) 36
Alberta LR 117. In arguing that possession should be the root of the recognition of aboriginal
title, he writes: ‘Any legal system that would accord greater interest in land to a wrongdoer,
after just ten years of adverse possession, than it would to Aboriginal peoples who have
rightfully occupied and used lands for hundreds or even thousands of years, is not entitled to
respect’ (138).
106 Compare Bennett & Powell (note 3 above) 1 who are of the view that the doctrine does entitle
communities to either ‘vindicate’ their lands, or to obtain compensation if they were
dispossessed without payment of adequate compensation.
107 See Bennett & Powell (note 3 above) 457-68’s discussion on this requirement.
108 E Boonzaaier et al The Cape Herders: A History of the Khoikhoi of Southern Africa (1996).
110 The Land Claims Court action was one for restitution of rights that have been lost. The High
Court action (as gleaned from the pleadings) was one for vindication of land. In the latter
case the community asserted that it lost physical use of the land, but that its rights in the land
remained unaffected. The state’s fencing-off of the land is treated as tantamount to an
unlawful eviction under the common-law. If the High Court action were to be revived, it is
uncertain what the effect on that case would be given the fact that the Supreme Court of
Appeal found that the community has been dispossessed of its rights in the land.
Western Australia v Ward111 suggests that it may be sufficient for a

community to have retained a spiritual link with the land, and that actual
physical occupation is not always a necessary prerequisite, the
circumstances of the case in which this was held were exceptional. The
case involved an application of the Native Title Act of 1993 introduced in
Australia specifically to clarify and delimit the scope of aboriginal title
claims following the High Court’s decision in Mabo. All the Native Title
Act requires for the establishment of Aboriginal Title is that the
community must have maintained a connection with the land.112 The
High Court held that ‘[t]he absence of evidence of some recent use of the
land or waters does not, of itself, require the conclusion that there can be
no relevant connection as required by s 223(1)(b) of the Native Title
Act’.113 Important also is the fact that the High Court conceived of native
title as a bundle of all the specific rights aboriginal communities had over
the land under their customary laws and traditions. The uses to which the
land can be put is thus limited to the uses to which the land had, pre-
sovereignty, been put. Under this approach, it is possible to reconcile the
uses to which the community wishes to put the land once its rights are
restored, with the continued use of that land by more recent non-
indigenous occupiers.114
A further leg in the enquiry to establish the existence of aboriginal title,
adverted to earlier, is the need to prove occupation at the time the State
asserted sovereignty over the claimed land.115 This requirement is
especially inappropriate for South Africa, for it creates difference where
111 The issue was discussed in both the Federal Court of Appeal and High Court judgments.
They are respectively reported as Western Australia v Ward (2000) 170 ALR 159 and Western
Australia v Ward [2002] HCA 28.
112 Section 223 of the Native Title Act 1993 provides: ‘The expression native title or native title
rights and interests means the communal, group or individual rights and interests of
Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where (a) the
rights and interests are possessed under the traditional laws acknowledged, and the
traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders, and (b)
the Aboriginal peoples by those laws and customs, have a connection with the land or waters
and (c) the rights are interests are recognised by the common law of Australia’.
113 Note 111 above, para 64. The court went on to state: ‘We, therefore, need express no view, in
these matters, on what is the nature of the ‘‘connection’’ that must be shown to exist. In
particular, we need express no view on when a ‘‘spiritual connection’’ with the land (an
expression often used in the Western Australian submissions and apparently intended as
meaning any form of asserted connection without evidence of continuing use or physical
presence) will suffice’.
114 The High Court’s approach in Ward (note 111 above) is very different to the approach
adopted by the Canadian High Court in Delgamuukw (note 1 above), which specifically
rejected the conception of Native Title as no more than the sum-total of specific activities
engaged in by aboriginal communities at the time of colonisation. The difference is
significant, for under the Delgamuukw approach, once a community establishes that it holds
aboriginal title to land, it is entitled to engage in activities that are not ‘integral to the
distinctive culture’ of the community, provided those activities are not irreconcilable with
aboriginal communities continued use of the land into the future. Activities that destroy the
land, such as strip mining, would not be permitted, although other forms of mining might be.
115 Delgamuukw (note 1 above) para 143.
114 (2004) 20 SAJHR
none exists, except as a quirk of history. The doctrine potentially leaves

presently identically-situated communities, so far as their current
relationships to, and economic dependence on, land is concerned, in
completely different positions. One group, whose forebears happened to
have been in occupation at the time the English or Dutch or Trekkers
asserted sovereignty, will have its rights in and to the land recognised.
The other, whose forebears established themselves on the land later in
time, and who may have done so only as a result of earlier dispossession
attributable to colonisation, may not be protected, even though, in the
intervening generations, the land may have come to play an equally
significant role in the latter’s culture and economy.116 Differential
treatment, based on such arbitrary accidents of history, is surely
inappropriate. The better approach is surely to look at current relation-
ships to land, and to protect those relationships and needs, irrespective of
whether they existed at a particular moment in history some 300 years
ago.
Introducing the doctrine of aboriginal title would necessitate an
enquiry into the issue of indigenous identity, and on an approach that has
proper regard for international jurisprudence, the probable outcome
would be that the majority of South Africa’s citizens would not be
entitled to claim indigenous rights. However, a future court might well
opt for a less contentious definition, and characterise all descendants of
the pre-colonial inhabitants as indigenous, notwithstanding the anom-
alous results to which this would, in my opinion, lead. Were a judiciary
sympathetic to a particular community’s claims founded on aboriginal
title to introduce the doctrine, what would its over-all import for South
Africa be? Its effect would still be negligible, no matter how broad the
interpretation given to ‘indigenous’. It is not only that few, if any,
Khoesan communities would benefit. It is equally the case that very few
black African communities would meet the rigorous requirements of the
doctrine.117 And if they were able to do so, they would in all probability
have no need, on account of the Interim Protection of Informal Land
Rights Act 31 of 1996.
116 La Forest J and L’Heureux-Dubé J in a minority judgment in Delgamuukw (ibid) were of the
view that sovereignty might not be the appropriate date in all cases. Where a community
established a relationship with a particular territory after sovereignty, they may nevertheless
enjoy aboriginal title to the land they currently occupy (ibid para 197). This is the more
preferable approach, for being the more equitable.
117 So far as black African groups are concerned, most also suffered mass displacement. The first
such mass displacement arose as a result of the Mfecane, which, if it occurred after either
British or Dutch or Trekker assertions of sovereignty over particular territories, could also be
a bar to claims founded on aboriginal title. The next series of mass displacement occurred
after the adoption of the Native Land Act 27 of 1913. Most groups displaced after
colonisation might therefore not find a remedy in the doctrine of aboriginal title, depending
on how rigorously the court approaches the requirement of occupation at the time of
sovereignty.
Despite these criticisms of the doctrine of aboriginal title, there exists

an alternate form of redress that could be used to achieve the self-same
outcomes to those of the doctrine, and to obtain fulfilment of many of
the other rights sought by indigenous communities around the world. It is
a method that would treat all similarly-placed peoples equally, for it
would look to present relationships and practices only. It is a basis that
would be equally available to all groups within South Africa, and would
therefore obviate the need for courts having to engage in the potentially
divisive, and uncertain, issue of indigenous identity. It would never-
theless, if interpreted and applied properly, be a mechanism that would
most assist communities descended from the ‘pre-colonial’ inhabitants of
South Africa. The means to which I refer is the right to culture, contained
in ss 30 and 31 of the Constitution.118
VI AN ALTERNATIVE APPROACH: THE RIGHT TO CULTURE

The rationale behind the doctrine of aboriginal title is the protection of
culture. It is also the rationale behind the recognition of the specific usage
rights in respect of land over which indigenous communities do not enjoy
full aboriginal title.
The link between land and culture was clearly made by the Canadian
Supreme Court in R v Adams.
Where an aboriginal group has shown that a particular practice, custom or tradition
taking place on the land was integral to the distinctive culture of that group then, even if
they have not shown that their occupation and use of the land was sufficient to support a
claim of title to the land, they will have demonstrated that they have an aboriginal right to
engage in that practice, custom or tradition. The Van der Peet test protects activities
which were integral to the distinctive culture of the aboriginal group claiming the right; it
does not require that that group satisfy the further hurdle of demonstrating that their
connection with the piece of land on which the activity was taking place was of a central
significance to their distinctive culture sufficient to make out a claim to aboriginal title to
the land.119
Canadian scholars have interpreted other statements by the Canadian

Supreme Court as evidencing the link between land and culture:
What, then, is the Supreme Court’s theoretical rationale underpinning of the doctrine of
Aboriginal title? A statement of what appears to be this rationale is found in the
following passage from Delgamuukw: ‘Although aboriginal title is a species of aboriginal
right recognized and affirmed by s 35(1), it is distinct from other aboriginal rights because
118 Constitution of the Republic of South Africa Act 108 of 1996.

119 Note 26 above, para 26 (emphasis original). In Delgamuukw (note 1 above) paras 128-29, the
Canadian Supreme Court said: ‘[O]ne of the critical elements in the determination of whether
a particular group has aboriginal title to certain lands is the matter of the occupancy of those
lands. . . . If lands are so occupied, there will exist a special bond between the group and the
land in question such that the land will be part of the definition of the group’s distinctive
culture. . . . The relationship between an aboriginal community and the lands over which it
has aboriginal title has an important non-economic component. The land has an inherent and
unique value in itself, which is enjoyed by the community with aboriginal title to it’.
116 (2004) 20 SAJHR
it arises where the connection of a group with a piece of land was of central significance
to their distinctive culture’. From this passage it is clear that the Supreme Court will
grant Aboriginal Title only to those groups for whom a piece of land was, historically, of
central significance to their distinctive culture. . . . A piece of land being of central
significance to the culture of the group in question then, appears to be the theoretical
rationale behind granting Aboriginal Title.120
In Australia, courts state that aboriginal title is rooted in the

traditional laws and customs of Aboriginal peoples.121 Aboriginal title,
and the recognition of other indigenous rights, is thus the medium
through which cultural rights are protected in Canada and Australia.122
In South Africa, there is no need for this medium. The South African
Constitution recognises a direct right to culture.123
The rights that communities have obtained through the doctrine of
aboriginal rights and aboriginal title in Canada and Australia, do not
require positive action from the State. Both aboriginal rights and
aboriginal title cases are essentially ‘permissive’, individuals and
communities are permitted to continue engaging in the practices, and
occupying the land, that they had hitherto been practising or occupying.
Interpreting the constitutional right to culture in a way that achieves the
selfsame outcomes of the doctrine of aboriginal title, and of aboriginal
rights generally, will not be inconsistent with a ‘negative’ formulation of
the right.
The right to culture, however, has the potential to be interpreted far
more broadly. It may be interpreted as requiring of a State that it take
positive action to protect the demise of a distinct culture, or that it assist a
community in the revitalisation of its culture.124 In South Africa, where
communities may have difficulty establishing a historical relationship
with the land they currently occupy, neither the doctrine of aboriginal
title, nor a ‘negative’ interpretation of the right to culture, would assist
them in obtaining access to, or restitution of, land. Similarly, if a
community’s concerns relate to, for example, obtaining education in a
120 BJ Burke ‘Left out in the Cold: The Problem with Aboriginal Title Under Section 35(1) of the
Constitution Act, 1982 for Historically Nomadic Peoples’ (2000) 38 Osgoode Hall LJ 1,16.
121 Mabo (note 1 above) para 64.
122 McNeil (note 105 above) 123 has written that ‘Aboriginal title . . . seems to involve proof of a
connection with the land itself that was integral to the distinctive culture of the Aboriginal
claimants’.
123 As does art 27 of the International Covenant on Civil and Political Rights. Numerous cases
involving alleged violations of the right to culture have been brought before the Human
Rights Committee by indigenous communities. See Lovelace v Canada (Communication no.
24/1977), Sweden v Kitok (Communication no. 197/1985), Lansman v Finland (Communica-
tion no. 511/1992).
124 See further J De Waal, I Currie & G Erasmus The Bill of Rights Handbook 4ed (2001) 476,
who are of the view that s 31 probably ‘requires positive measures by the state in support of
vulnerable or disadvantaged cultural, religious and linguistic communities that do not have
resources for such initiatives’. The UN Draft Declaration contains, as one of the rights of
indigenous peoples, the right to revitalisation of culture.
mother tongue that is not an official language,125 the right to culture

would not avail the community if it is construed as a purely ‘negative’
right. The difficulty facing claimants who seek to rely on the right to
culture to secure benefits that go beyond those conferred by the doctrines
of aboriginal title and aboriginal rights, is the reluctance thus far
displayed by the judiciary to interpret the right as imposing positive
obligations on the state.126 It is difficult to make an argument that
requires courts to give the right to culture a positive content, other than
to suggest that a failure to do so in the face of the imminent demise of a
culture, is to be complicit in that culture’s demise. The right to culture
need not have been included in the Constitution, but it has been, and as
such, must surely be given a content that is of real meaning for its
citizens, preferably the majority of its citizens. Where particular groups
are unable to realise for themselves the most fundamental of the ‘basic
principles of minority protection law’, referred to as such by Sachs J in
the Gauteng School Education Bill case, that of ensuring their own future
existence, it is surely the State’s duty to undertake the necessary action.
Sachs J himself acknowledges that the State may be required to do so
when he says:
The situations are varied, but the common theme that runs through most of the
international documents on the subject [of minority protection] is the duty of the State to
take remedial action in relation to groups that have been subjected to different forms of
disadvantage. . . . Following on from the State duty to overcome the effects of past
disadvantage, came recognition of the fact that affirmative action in favour of
disadvantaged groups would not be regarded as unlawful discrimination, and, on the
contrary, could actually be required. . . . The United Nations Convention on the
Prevention and Punishment of the Crime of Genocide of 1948 clearly acknowledges the
right of all national groups to physical existence. It is not so clear, however, whether a
right to independent cultural existence is also recognised, that is, whether or not there is a
prohibition on what has been called cultural genocide. There is nothing in the present
case, however, to suggest that the challenged statutory provisions form part of a
programme calculated to physically eliminate members of the Afrikaans speaking
community or to wipe out their culture. In South African conditions today, the group
that would appear to have the greatest claim to invoke any such right would be the San/
Khoisan population, whose habitats have been taken away from them or else so
ecologically despoiled that their survival as a distinct cultural group can be said to be in
peril. It would, however, be unwise to express any opinion on the subject, save to say that
the present case stems from the situation of a community defending relative affluence and
privilege, rather than one combating marginalisation and the imminence of group
annihilation.127
125 For example Nama, which is the only surviving Khoe language in South Africa, and of which
estimated that there are only about 5000-10 000 remaining speakers. See ILO Report (note 35
above) 5-6.
126 See in particular the arguments with regard to cultural, linguistic and religious minority rights
by Sachs J in Gauteng School Education Bill (note 55 above). Nkosi v Buhrmann 2002 (1) SA
372 (SCA) also seems to prioritise the right to property above the rights to religion & culture.
127 Gauteng School Education Bill (note 55 above) paras 68-9.
118 (2004) 20 SAJHR
Despite Sachs J’s caution, it is difficult to interpret the right to culture

in a way that does not include within it the right to cultural survival.
Whether a particular community or group faces such a threat, is a
question of fact, to be decided on the evidence available. Although Sachs
J identifies the San and Khoekhoe as the likeliest beneficiaries of the right
to culture if it does require positive action on the part of the state, the
potential beneficiaries would include all South Africa’s peoples. The state
would be required to take positive action in all cases in which a
community is faced with an imminent threat to its cultural survival, and
not simply where the threat is one faced by a group that can establish its
status as an indigenous people. Unlike the doctrine of aboriginal title, this
approach does not depend on, or entrench, racial or ethnic or cultural
difference. It treats all peoples, facing similar threats to their continued
existence as distinct cultures, equally. Nevertheless, its principle
beneficiaries should be Khoesan and black African communities, for it
is arguably in respect of both that cultural affirmative action, to
paraphrase Sachs J, is most needed.
VI CONCLUSION
Indigenous peoples around the world are said to number some 300
million.128 The common experiences of these 300 million people are that
they are marginalised, discriminated against, living at the fringes of their
national societies, and the most impoverished groups within their
societies.129 The needs and aspirations and experiences of indigenous
peoples in other parts of the world mirror those of many of South
Africa’s peoples. The similarities do not mean, however, that it is
appropriate to introduce the language of indigenous rights into South
Africa, either directly, or indirectly, by importing the doctrine of
aboriginal title. This is all the more so, when the self-same ends, sought
to be achieved by the recognition of indigenous rights, and the doctrine of
aboriginal title, could be achieved by giving the right to culture a
meaningful content. Acknowledging that the Khoesan are the first
peoples of South Africa, acknowledging that their needs, to protection or
revitalisation of culture, are arguably greater than those of other groups
within South Africa, does not require that a distinct category of
‘indigenous’ rights-bearers be created in South African common-law.
That there is no need is thanks to ss 30 and 31 of the Constitution. It
would surely be a fitting choice for the judiciary to interpret the right to
culture not as the ‘white-minority’ right it was originally conceived to be,
but as a right most relevant for the majority of its citizens, especially for
all descendants of the ‘pre-colonial’ inhabitants of South Africa.
128 UNWGIP Fact Sheet No 9 (Rev 1) The Rights of Indigenous Peoples.

129 Ibid.

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ABORIGINAL TITLE,

INDIGENOUS RIGHTS AND THE

respect of indigenous peoples themselves.3 In South Africa, the doctrine

sense in which claimant groups in Canada and Australia are indigen-

10 Ibid. This is implicit in paras 33-4.

communities to recover land of which they were dispossessed.16 Its true

16 Bennett & Powell (note 3 above) 449.

21 See the discussion on the right to culture below.

In this paper, I discuss the relationship between aboriginal title and

II ABORIGINAL TITLE AND INDIGENOUS RIGHTS

In each of the countries that has acknowledged the existence of distinct

Each of these rights inheres in aboriginal peoples because they are

28 R v Van der Peet (note 26 above) paras 19-26 (emphasis original).

definition of ‘indigenous’. Despite its efforts spanning two decades, the

The clear-cut distinctions that exist in Canada and Australia do not

III THE MEANING OF INDIGENOUS

40 Convention Concerning Indigenous and Tribal Peoples in Independent Countries (1989).

Although indigenous organisations have themselves expressed opposi-

population may of course, numerically, and therefore politically,

As a result, if indigenous peoples constitute a numerical majority, and

56 That non-dominance is an essential prerequisite of successfully establishing an indigenous

which will have a significant impact on the economic well-being of both

57 The definition of minorities by Francesco Capotorti is very similar to Martinez Cobo’s

emphasise that there is a very significant distinction between ‘ordinary’

61 Note 46 above, para 119.

Notwithstanding the views expressed by Miquesl Alfonso Martinez,

IV APPLYING THE DEFINITION TO SOUTH AFRICA

The definitions of indigenous thus far proposed under international

identifying indigenous rights-bearers, and defines ‘majority’ only in terms

76 Sachs J in Ex parte Gauteng Provincial Legislature (note 55 above) para 81.

have suffered or must suffer discrimination and oppression at the hands

84 Davenport (note 83 above) 3; Beck (note 80 above) 10.

If it is accepted that the differences between the Khoesan and black

land, or other resources, for equally impoverished communities, simply

industrialised and industrialising economies.100 Where such redress and

V LIMITATIONS OF THE DOCTRINE OF ABORIGINAL TITLE

sovereignty by the claimant group’s ancestors. That it is the protection of

Western Australia v Ward111 suggests that it may be sufficient for a

none exists, except as a quirk of history. The doctrine potentially leaves

Despite these criticisms of the doctrine of aboriginal title, there exists

VI AN ALTERNATIVE APPROACH: THE RIGHT TO CULTURE

Canadian scholars have interpreted other statements by the Canadian

118 Constitution of the Republic of South Africa Act 108 of 1996.

In Australia, courts state that aboriginal title is rooted in the

mother tongue that is not an official language,125 the right to culture

Despite Sachs J’s caution, it is difficult to interpret the right to culture

128 UNWGIP Fact Sheet No 9 (Rev 1) The Rights of Indigenous Peoples.

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