Divers Paths to Justice - English - Forest Peoples Programme

Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast Asiaused the agenda of reform to centralise his power, suppress ethnicminorities, strengthen pre-existing domestic class and gender hierarchiesand secure the interests of the elite- dominated Siamese State. 47Native TitleColonial powers sought where possible to obtain access to and control ofcommerce and resources without costly recourse to violence, though thiswas always a last resort. There is thus a long history of colonial States’recognising to some degree the rights of indigenous peoples to their landsand to consent. 48 In common law countries this has led to the emergence ofthe notions of ‘native title’ and ‘aboriginal rights’ in land, which accept that‘native’ or ‘backward’ peoples have rights in land based on their custom. 49The advances made by indigenous peoples since this legal principle gainedwide acceptance in recent years, should not however allow us to overlookthe way the colonial State sought to limit these rights, as these limits are tosome extent still with us today. These limitations include: the establishmentof inappropriate systems for land registration and taxation whichdiscouraged indigenous land claims; 50 the requirement that all transfers ofland must first entail the cession of such lands to the State and; 51 the layingof the burden of proof of aboriginal rights on the people themselves whohad to prove continuing occupancy or at least the continuing exercise ofcustomary law over the land. 52Moreover, colonial laws and regulations frequently sought to minimiserights in land, diminishing them to little more that rights of usufruct on47 ibid. 2002:1548 For a short summary see Colchester & MacKay 2004. The courts established in1832 that a European nation could only claim title to land if the indigenous peopleconsented to sell (McMillan 2007:90).49 Lindley 192650 Doolittle 200551 ibid. 2005:22-26; McMillen 200752 Culhane 199829