Friday, July 10, 2020


Article Index


A. Self-Governance Deficit

      The ability of indigenous groups to self-govern or self-administer their own affairs within their own territorial confines is one of the fundamental underlying problems affecting the implementation of their rights to lands, territories, and natural resources, and their participation in sharing the fruits of these resources, as contemplated by respective international instruments. Coupled with this predicament is the issue of the character of such self-governing powers and the quality of deference accorded them within the national schemes.

      In the United States, tribes are seen as distinct political entities, having substantial sovereignty and cognizable property rights. For instance, in accordance with the Treaty of 1866, entered into on July 19, 1866, between the Unites States government and the Cherokee Nation, the U.S. Supreme Court, in Cherokee Nation v. Journeycake, confirmed that the lands and territories subject to the treaty are the common property of all Cherokee citizens and that the tribe possesses full common rights and property interests in the designated territory. Thus, apart from the federal and state governmental structures, tribal government systems constitute a vital and legally recognized tier of government. The relationship between tribal authorities and the federal government has always been seen as a ““government to government” relationship. To this extent, tribes have jurisdiction over their territories (reservations) to the necessary exclusion of states. A tribal government therefore possesses its own inherent sovereign self-administration powers within the federal system. In order to exert this power, most tribes in the United States have adopted formal constitutions and other regulatory instruments that allow them to exercise jurisdiction over various activities within tribal territories, including crime, civil conduct, and taxation.

      By contrast, any conceptual device that is perceived as analogous to the idea of self-determination is abhorred by many national governments in Africa. Most believe that such power, if ceded to tribes as a sovereign unit, would set the stage for political unrest within the national structure, instigate disunity, and subvert the nation-building efforts of the national governments. This point is fairly exemplified by the persistent objection by African countries to the adoption of UNDRIP, largely based on general animus for the underlying concept and the need to qualify the self-determination right contained in the Declaration. Most of the opposing countries became more supportive only when a clarifying proviso was added to the final draft. The proviso, contained in Article 46 of UNDRIP, states:

       Nothing in the Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

      The foregoing provisions were accepted by the African Commission on Human and Peoples' Rights (ACHPR) as adequate to guarantee the inviolability of the integrity of the nation-states within the continent.

      In Nigeria, governmental powers, as prescribed by the Constitution, are hierarchically structured among federal, state, and local governments. Any authority put in place by the tribes lacks tangible meaning because they are subject to the superior powers of the local government council where their tribal lands are located. According to the Constitution, it is the duty of the respective local government councils to participate in economic planning and development of the area ascribed to it by law, and to this end, an economic planning board shall be established by the House of Assembly. Under this mandate, governmental structures put in place by tribal elders lack the authority and jurisdictional reach enjoyed by Native American tribes.

B. Lands and Natural Resources: Who Is in Control?

      As noted earlier, Native American tribes, including the Navajo, assume a significant participatory role in dealing with issues relating to exploitation, management, and allocation of the natural resources found on tribal lands. More significant, however, is the fact that the federal system actively accommodates the discharge of this role. For instance, the Indian Mineral Leasing Act (IMLA), enacted by the U.S. Congress, stipulates that:

       Unallotted lands within any Indian reservation or lands owned by any tribe, group, or band of Indians under Federal jurisdiction (except those specifically excepted from the provisions of sections 396a to 396g of the Act), may, with the approval of the Secretary of the Interior, be leased for mining purposes, by authority of the tribal council or other authorized spokesmen for such Indians, for terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities.

      Consequently, subject only to some federal supervision, Native American tribes can exercise the right to establish certain policies or regulatory mechanisms to maintain control over their lands and natural resources. Tribes can also institute appropriate mechanisms for the purpose of ensuring adequate standards of environmental quality for the tribal communities, while the federal government, on the other hand, acts as a trustee on behalf of the tribes. This fiduciary responsibility requires the federal government to ensure fair management of tribal lands and natural resources in a manner consistent with the tribal government interests and objectives. To achieve these objectives, the federal Energy Policy Act directs that:

       The Secretary of the Interior is authorized to make annual grants to Indian tribes for the purpose of assisting Indian tribes in the development, administration, implementation, and enforcement of tribal laws and regulations governing the development of energy resources on Indian reservations.

      The situation is remarkably different in many African states. Indigenous ethnic populations do not have any ownership rights in either the land they occupy or the natural resources contained therein. All natural resources, including oil, gas, and lands, are almost exclusively controlled and regulated by federal provisions. In Nigeria, the Minerals and Mining Act, the Petroleum Act, the Land Use Act, and the Constitution have collectively deprived tribes of any appreciable rights, whether in terms of ownership, control, or management of lands and natural resources.

      According to section 1(1) of the Petroleum Act, the entire ownership and control of all petroleum in, under, or upon any lands is vested in the State, and this extends to all lands including land covered by water. Additionally, Nigeria's Land Use Act and other land-holding legislation exclude rights of claim by any persons or entity to minerals or natural resources attached to a land or real estate as a derivative of ownership. Similar provisions were contained in section 1 of the Minerals and Mining Act, which states that:

       The entire property in and control of all minerals, in, under or upon any land in Nigeria, its contiguous continental shelf and of all rivers, streams and watercourses throughout Nigeria, or any area covered by its territorial waters or constituency, is and shall be vested in the Government of the Federation for and on behalf of the people of Nigeria.

      These provisions were further validated by the Nigerian Constitution, which proclaims:

       The entire property in and control of all minerals, mineral oils and natural gas in, under or upon any land in Nigeria, under or upon the territorial waters and the exclusive economic zone of Nigeria shall vest in the government of the federation and shall be managed in such manner as may be prescribed by the National Assembly.

      The Land Use Act, for its part, divested from every entitled landowner in Nigeria, whether individual or collective, the ultimate title of ownership in lands, substituted it with rights of occupancy, and vested the original title in the state governments. Thus, where any customary landowner had title to lands before the advent of the Act, after the Act, he was deemed to be a holder of a lesser right of occupancy.

      The practical and legal implication here is that, prior to the enactment of the Land Use Act, corporations, whether private or public, intending to embark on natural resource exploitation projects on any portion of land within tribal territories tended to recognize the indigenous ethnic population as collective owners of their territories. As a result, they approached the appropriate communities, consulted with them, and negotiated terms of the operations, including arrangement for payment of land rates and rents. The Land Use Act radically changed this ownership structure--upon its enactment, corporate entities had to deal with the government almost exclusively on every matter relating to the exploitation of natural resources and land use. The significance of this development is that corporations are no longer legally obligated to acknowledge rights of the indigenous communities with regard to land use and natural resources.

      It suffices to say here that this form of ownership and control structure is not peculiar to Nigeria. It has been a common feature in many African countries. For example, the Constitution of the Democratic Republic of Congo of 2005 provided:

       The State exercises permanent sovereignty over the Congolese soil, subsoil, water resources and woods, air space, rivers, lakes and maritime space as well as over the Congolese territorial sea and the continental shelf. The conditions for the management and the granting of concessions with regard to the State domain referred to in the preceding paragraph are determined by law.

      Similarly, legal regimes existing in other African countries such as Ghana, Sierra Leone, and Liberia have sustained this sort of emasculatory structure.