Property Rights and Indigenous Communities 90. The Complainants argue that both international and domestic courts have recognised that indigenous groups have a specific form of land tenure that creates a particular set of problems, which include the lack of “formal” title recognition of their historic territories, the failure of domestic legal systems to acknowledge communal property rights, and the claiming of formal legal title to indigenous land by the colonial authorities. They state that this situation has led to many cases of displacement from a people’s historic territory, both by the colonial authorities and post-colonial states relying on the legal title they inherited from the colonial authorities. 91. In pursuing that line of reasoning, the Complainants argue that the African Commission itself has recognised the problems faced by traditional communities in the case of dispossession of their land in a Report of the Working Group on Indigenous Populations/Communities, where it states: […] their customary laws and regulations are not recognised or respected and as national legislation in many cases does not provide for collective titling of land. Collective tenure is fundamental to most indigenous pastoralist and hunter-gatherer communities and one of the major requests of indigenous 17 communities is therefore the recognition and protection of collective forms of land tenure. 92. They argue that the jurisprudence of the African Commission notes that Article 14 includes the right to property both individually and collectively. 18 93. Quoting the case of The Mayagna (Sumo) Awas Tingni v Nicaragua, they argue that indigenous property rights have been legally recognised as being communal property rights, where the Inter-American Court of Human Rights (IACtHR) recognised that the Inter-American Convention protected property rights “in a sense which includes, among others, the rights of members of the 19 indigenous communities within the framework of communal property.” 94. The Complainants further argue that the courts have addressed violations of indigenous property rights stemming from colonial seizure of land, such as when modern states rely on domestic legal title inherited from colonial authorities. They state that national courts have recognised that right. Such 20 decisions were made by the United Kingdom Privy Council as far back as 1921, the Canadian 21 22 Supreme Court and the High Court of Australia. Quoting the Richtersveld case, they argue that the South African Constitutional Court held that the rights of a particular community survived the annexation of the land by the British Crown and could be held against the current occupiers of their 23 land. 95. They argue that the protection accorded by Article 14 of the African Charter includes indigenous property rights, particularly to their ancestral lands. The Endorois’ right, they argue, to the historic lands around Lake Bogoria are therefore protected by Article 14. They aver that property rights protected go beyond those envisaged under Kenyan law and include a collective right to property. 96. They argue that as a result of the actions of the Kenyan authorities, the Endorois’ property has been encroached upon, in particular by the expropriation, and in turn, the effective denial of ownership of their land. They also state that the Kenyan justice system has not provided any protection of the Endorois’ property rights. Referring to the High Court of Kenya, they argue that it stated that it could 24 not address the issue of a community’s right to property. 97. The Complainants argue that the judgment of the Kenyan High Court also stated in effect that the Endorois had lost any rights under the trust, without the need for compensation beyond the minimal amounts actually granted as costs of resettlement for 170 families. They argue that the judgment also denies that the Endorois have rights under the trust, despite being “ordinarily resident” on the land. The Court, they claimed, stated: What is in issue is a national natural resource. The law does not allow individuals to benefit from such a resource simply because they happen to be born close to the natural resource. 98. They argue that in doing so, the High Court dismissed those arguments based not just on the trust, but also on the Endorois’ rights to the land as a ‘people’ and as a result of their historic occupation of Lake Bogoria. 99. The Complainants cite a number of encroachments, they claim, that go to the core of the community’s identity as a ‘people’, including: