From M’Intosh to Endorois: Creation of an International Indigenous Right to Land

Abstract

Vestiges of colonial land regimes still plague both developing and industrialised societies
and further marginalise vulnerable, indigenous populations worldwide. Recent progressive
jurisprudence—in particular the Endorois case out of Kenya—has begun to change this landscape.
This Article streamlines the debate on indigenous and native rights to land by synthesising
historical and modern developments in common law and international legal systems that
definitively establish native title rights. It contextualises the history of dispossession experienced
by indigenous peoples and the constitutional and legal reforms needed to change both law and
practice. Despite developments over the last decades, native title recognition is far from universal.
Many countries lag behind in recognition and in the process condone exploitative colonial legacies.
This Article argues for an immediate increased emphasis on implementing reforms that respond to
modern jurisprudence and the growing international consensus on indigenous rights to land.