Picture source: Gallo Images/Getty
By George Barrie
In the article ‘Revisiting the term “community” in the South African context’ 2018 (Dec) DR 18, Udo Richard Averweg and Professor Marcus Leaning once again brought to light the importance of defining the term ‘community’ referred to in s 2(1)(d) of the Restitution of Land Rights Act 22 of 1994 (the Act). This section refers to a claim of a ‘community’ that was dispossessed of rights in land in South Africa (SA). This section must be read in conjunction with s 25(6) and s 25(7) of the Constitution. Section 25(7) states, inter alia, that a community whose tenure of land is legally insecure due to past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, to tenure which is legally secure or to comparable redress. Section 25(7) states the same if the community was dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices.
It appears that communal land claims are playing a major role in land restitution claims especially after the highly successful and much published Richtersveld community land restitution claim in the Constitutional Court (CC) in Alexkor Ltd and Another v Richtersveld Community and Others 2003 (12) BCLR 1301 (CC). The CC held that the Richtersveld community was entitled to restitution of the ownership of land and to the exclusive beneficial use and occupation of the claimed land. This case was initiated in the Land Claims Court (LCC) and reached the CC after an appeal to the Supreme Court of Appeal (SCA) (see GN Barrie ‘Land claims by indigenous peoples – litigation versus settlement? Observations on the Richtersveld litigation route followed in South Africa versus the Noongar settlement route followed in Western Australia’ (2018) 2 TSAR 344). The CC in the Richtersveld decision received international attention, not only because of the tenacity of the small Khoi community in taking on the state and its state-owned enterprise, but also for the ramifications of the order made by the CC in favour of the community.
What is a ‘community’?
There have been various attempts by South African courts to define the term ‘community’ but a consensus remains elusive. In Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (10) BCLR 1027 (CC) Moseneke DCJ held that there was no reason to limit the meaning of the word ‘community’ in s 2(1)(d) of the Act by inferring a requirement that the group concerned must show an accepted tribal identity and hierarchy. That bonds of custom, culture and hierarchical loyalty may be helpful to establish a group’s shared rules relating to access and use of land. But far more essential, the court held, was whether the community retained much of their identity and cohesion of an erstwhile clan. Moseneke DCJ adopted a generous interpretation of the Act and held that for a ‘community’ to qualify as a claimant under s 2(1)(d) of the Act it must prove that there had remained something substantial and cohesive from the original community, and that they had derived their possession of land from shared rules (see W Du Plessis, J Pienaar and N Olivier ‘Land matters’ (2007) 22 SAPR/PL 548 at 581). In Mhlanganisweni Community v Minister of Rural Development and Land Reform and Others (LC) (unreported case no LCC156/2009,19-4-2012) (Gildenhuys J) the LCC stated that ancestral lands are joined to their descendent communities as closely as the umbilical cord joins mother and child. In this case the community was dispossessed just short of a hundred years ago and concerned the restoration of land comprising the MalaMala game reserve.
Many community restitutions of land claims are settled out of court as was done with the Makuleke community in 1996, the Makhoba community in 2002, the Riemvasmaakers in 1994 and the Makgoba community in 2009. The latter’s land restitution included the tea plantations previously leased to the Sapekoe group by the state.
The Communal Land Rights Act 11 of 2004, which attempted to define what constitutes a ‘community’ was declared unconstitutional by the CC in Tongoane and Others v Minister of Agriculture and Land Affairs and Others 2010 (6) SA 214 (CC) because the wrong procedure had been followed in promulgating the specific Act.
The term ‘community’ in s 2(1)(d) of the Act, however, continues to call for an acceptable definition on which there is a semblance of a consensus. As stated by Averweg and Leaning (op cit) at present, conceptions of community are varied and a better understanding of the actual meaning of the term is needed.
In embarking on such an endeavour much can be gained from reflecting on how two other countries who have a similar history to SA when it comes to land issues pertaining to indigenous communities – Australia and Canada – have approached the issue. These two countries both have a history of dispossessing their indigenous communities and placing such communities in so-called ‘reserves’ or ‘customary lands’. It is not within the ambit of this article to go into any detail underlying indigenous communities land claims in these two countries and a brief overview will thus be given.
For purposes of what follows ‘indigenous communities’ in Canada will be referred to as ‘Indigenous Nations’ and in Australia as ‘Aboriginal Nations’. These designations are capitalised because they are used as proper nouns to signify the status of the communities as they see themselves.
Canada
In Canada indigenous community land claims are based on the premise that the claim is founded on so-called ‘aboriginal title’. In Delgamuukw v British Columbia [1997] 3 SCR 1010 it was held that aboriginal title is held communally and is a collective right held by all members of an Indigenous Nation (there are numerous such nations in Canada, which in many instances consist of various ‘bands’ or communities). It was further held that to prove aboriginal title a community must prove that the land was occupied by the ancestors of the community; that at the time of the colonisation of Canada the communities occupied the specific land exclusively and that there must be continuity between the existing and pre-colonisation occupation by the community. This case supported the previous decision of Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development [1979] 3 CNLR 17.
Section 35(2) of the Canadian Constitution states that ‘“aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada’. Approximately 400 000 people identify as being Métis. The Métis are a distinct people that grew out of the symbiotic relationship between the original Indigenous Nations and the early European immigrants to Canada. Given the vastness of Canada, different Métis communities exist with their distinctive traits and traditions. In R v Powley 2003 SCC 43 the Supreme Court was seized with a Métis community land claim. To identify the community as a ‘community’ the court held that the relevant Métis community must have their –
Regarding land claims of the Inuit Indigenous Nation’s community, the Nunavut Land Claims Agreement was signed in 1993 between the government and 26 Inuit communities comprising 30 000 people of whom 85% were Inuit. This agreement gave the Inuit as a community recognised constitutional rights over 351 000 km2 of land.
Australia
The Aboriginal Nation of Australia consists of two main groupings. The one group is known as the Torres Strait Islanders and the other group consists of Aboriginal communities on mainland Australia and Tasmania. This latter group comprises of various distinct communities such as the Pitjantjatjara, the Tiwi and the Wiradjuri.
In Mabo v Queensland (No 2) (1992) 175 CLR 1 the Australian High Court was confronted with a claim by the Meriam community from the Torres Strait Islanders for the possession, occupation and use of the Murray Islands (part of the Torres Strait Islands). The court held that the Meriam community held so-called ‘native title’ to the Murray Islands. Such ‘native title’ was held to be held communally by the Meriam community and the community was entitled to use the land under their laws and customs. The court held that memberships of the community, was based on –
This was elaborated on in Western Australia v Ward (2002) 213 CLR 1 and Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422.
The Mabo (No2) case was followed by the Native Title Act 1993, which was designed to recognise and protect Aboriginal Nation community rights in the future.
Conclusion
It is striking, but not surprising, how similar problems relating to land claims issues by indigenous communities are found in SA, Canada and Australia. The similarity results from the fact that in all three countries the property and constitutional law regimes are based on initial British colonisation, settlement and its aftermath.
The similarities are rife despite the fact that the three countries find themselves in the northern and southern hemispheres. In all three countries the transfer of political and property rights was initially accomplished without the consent of the indigenous communities. The colonisers assumed that by virtue of the international law doctrine of discovery that they gained exclusive property rights. In SA the process of racial segregation of land control had already begun under the colonial authorities and gained momentum with the Black Land Act 27 of 1913, the Development Trust and Land Act 18 of 1936 and the Group Areas Act 41 of 1950. To this must be added the introduction of four independent national states and six self-governing territories. To achieve land control based on race, quite extensive use was also made of forced removals and evictions. A complex statutory network of primary and subordinate legislation was also necessary to sustain the complex web of rights and obligations, which inevitably encroached on common law rights on the one hand and communal property rights on the other. The profusion of legislative measures which emerged were to the disadvantage of the original indigenous communities.
This situation is very similar to the development of indigenous community land issues in Australia and Canada as set out above. These similarities make it imperative that SA takes cognisance of how indigenous communities have been defined in these two countries and how their community and land claims have been approached by their legislatures and courts. Such a study could only be of benefit in determining how to approach land restitution of communities in SA under the Act.
George Barrie BA LLB (UP) LLD (Unisa) is Professor Emeritus of the Law Faculty of the University of Johannesburg (UJ). He is formerly Dean of the UJ Law faculty and senior law adviser to the Department of Foreign Affairs.
This article was first published in De Rebus in 2019 (June) DR 14.
