The right to property has only been included in the regional treaties. In the major UN Covenants a broadly formulated right to property has not been included, although Article 17 of the Universal Declaration of Human Rights   specifies the right to property. In the period between 1952 and 1954, the UN member states could not come to a majority agreement as to the exact content of the right to property. They decided in 1954 to adjourn the discussion sine die. More than 50 years later, there is still no right to property included. It is difficult, if not impossible, to assess precisely the effects of such an omission. There is a substantial number of cases on property rights that, prima facie, give rise to property rights. Two examples are included below. The absence of the right to property leads to an imprecise definition of the property claim. As such it is difficult to examine whether a case would have had a chance before one of the regional courts. At the same time the Human Rights Committee seems to avoid detailed examination in the case of property rights. But more success has been achieved by claimants who claimed a violation of other rights, notably Article 14 on fair trial, Article 26 on non-discrimination and Article 27 on the rights of minorities.

As indicated, the HRC has decided several cases related to property issues under non-discrimination, Article 26. In addition, the notion of culture in Article 27 is understood to include traditional or otherwise typical forms of economic life, often attached to land and especially to the benefit of indigenous peoples. Hence, indigenous land claims may be addressed through ‘culture’ under ICCPR   Article 27.

In the following case,Ominayak (Lubicon Lake Band) v. Canada  , Chief Bernard Ominayak of the Lubicon Lake Band, Canada, brought a complaint alleging that Canada had denied members of the Lubicon Lake Band their rights to self-determination and to dispose freely of their natural wealth and resources. Chief Ominayak claimed that despite the Indian Act of 1970 and Treaty 8 of 1899, which recognized the Band’s right to continue its traditional way of life, Canada had expropriated the Band’s land of approximately 10,000 square kilometres for commercial purposes. This denied the Lubicon Lake Band its means of subsistence and enjoyment of the right of self-determination, causing irreparable injury to its members.

Ominayak (Lubicon Lake Band) v. Canada

Human Rights Committee

Communication No. 167/1984

Views of 26 March 1990

Keywords: self-determination - minorities - non-discrimination

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Articles of the Covenant alleged to have been violated

32.1 The question has arisen of whether any claim under article 1 of the Covenant remains, the Committee’s decision on admissibility notwithstanding. While all peoples have the right of self-determination and the right freely to determine their political status, pursue their economic, social and cultural development and dispose of their natural wealth and resources, as stipulated in article 1 of the Covenant, the question whether the Lubicon Lake Band constitutes a “people” is not an issue for the Committee to address under the Optional Protocol to the Covenant. The Optional Protocol provides a procedure under which individuals can claim that their individual rights have been violated. These rights are set out in part III of the Covenant, articles 6 to 27, inclusive. There is, however, no objection to a group of individuals, who claim to be similarly affected, collectively to submit a communication about alleged breaches of their rights.

32.2 Although initially couched in terms of alleged breaches of the provisions of article 1 of the Covenant, there is no doubt that many of the claims presented raise issues under article 27. The Committee recognises that the rights protected by article 27, include the right of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong. Sweeping allegations concerning extremely serious breaches of other articles of the Covenant (6, 7, 14, para. 1, and 26), made after the communication was declared admissible, have not been substantiated to the extent that they would deserve serious consideration. The allegations concerning breaches of articles 17 and 23, paragraph 1, are similarly of a sweeping nature and will not be taken into account except in so far as they may be considered subsumed under the allegations which, generally, raise issues under article 27.

32.3 The most recent allegations that the State party has conspired to create an artificial band, the Woodland Cree Band, said to have competing claims to traditional Lubicon land, are dismissed as an abuse of the right of submission within the meaning of article 3 of the Optional Protocol.

Violations and the remedy offered

33. Historical inequities, to which the State party refers, and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of article 27 so long as they continue. The State party proposes to rectify the situation by a remedy that the Committee deems appropriate within the meaning of article 2 of the Covenant.

Comment

The is a classic case as it raises various issues related to self-determination, access to land, autonomy and preservation of cultural heritage. The Human Rights Committee is not in a position to define views on all these issues, many of which cannot rely on a universal consensus. However, the Committee’s views in this case contribute to strengthening the position of indigenous peoples.

Selected additional cases: HRC: Länsman (Ilmari) et al. v. Finland, Communication No. 511/1992, Views of 26 October 1994; Länsman (Jouni E.) et al. v. Finland, Communication No. 671/1995, Views of 30 October 1996; Mahuika et al. v. New Zealand , Communication No. 547/1993, Views of 27 October 2000; Oló Bahamonde v. Equatorial Guinea, Communication 468/1991, Views of 20 October 1993; Ackla v. Togo, Communication 505/1992, Views of 25 March 1996;– Diergaardt et al. v. Namibia  , Communication No. 760/1997, Views 6 September 2000; Lubicon Lake Band v. Canada, Communication No. 167/1984, Views of 26 March 1990;

 Simunek et al. v. The Czech Republic, 516/1992; Views of 19 July 1995; E. and A.K. v. Hungary, 520/1992; Views of 7 April 1994; Somers v. Hungary, Communication No. 566/1993; Views of 29 July  1996.