Indigenous people and the Sale of Land

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land, you must remember that it is sacred and you must teach your children that it is sacred and that each ghostly reflection in the clear water of the lakes tells of the events and memories in the life of my people. The water’s murmur is the voice of my father’s father. If we sell you the land you must remember and teach your children that the rivers are our brothers, and yours and you must henceforth give the kindness you would give any brother. We know that the white man does not understand our ways. One portion of land is the same to him as the next, he is a stranger who comes in the night and takes from the land whatever he needs. The earth is not his brother but his enemy and when he has conquered it, he moves on. He leaves his fathers’ graves behind and does not care.... So we consider your offer to buy our land. If we decide to accept, I will make one condition. The white man must treat the beasts of his land as his brothers...You must teach your children that the ground beneath their feet is the ashes of our grandfathers. So they will respect the land. Tell your children that the earth is rich with the lives of our kin. Teach your children what we have taught to our children, that the earth is our mother. Whatever befalls the earth befalls the sons of the earth. If man spits on the ground, they spit on themselves.” In the contemporary scenario, we are the Chief Seattle and his tribe, the ultimate owners and beneficiaries of the natural resources, so if this lesson does not reach the white man (white man can be equated to the state and private companies who deal with them) it will be partially our fault. The State gets entwined in regulatory aspects and the private parties in their commercial exploitation in terms of their licenses and lease. The natural resources which are described as ‘sacred’ cannot speak for themselves, so their voices should be the beneficiaries. The people of the country who are the ultimate owner needs to be empowered to have a say when their sacred resources are being plundered, be they in the hand of any party- the state, a corporation, a municipality, a company or so on. The fact that these parties deal with the resources for all makes them responsible to the people (the beneficiaries) and not just the intermediaries (in terms of the state regulatory framework or the administrative bodies), and this makes the extension of this doctrine to private parties viable. It is true that the doctrine is not so much an anti-privatization concept as a vehicle for mediating between public and private rights in important natural resources[1] and the private companies want their freedom of operation. They look at all these regulations from the point of view that they are hindrances and delays in their operations. Even the state wants to attract private companies for exploration in natural resources from its development agenda and to attract foreign investment. One thing both the state and private parties have to be cautious about is that “freedom in commons can lead to ruin of all”.[2] The jus publicum rights even under private possession should never die. The ultimate owners are the citizens under Article 39(b) of our constitution. Today, if asked they do not actually feel like the owners. If private interests take over the public interests it would be a “offence in my opinion against the community, against the long-range interests of the country as a whole and more so against the unborn generations.”[3] It is time we think about the problems associated with natural resources and their privatisation. To empower the citizens we need to adopt either a stronger regulatory framework ensuring accountability of private companies in its actions or to expand the horizon of the public trust doctrine and unless the same is done it would be difficult to contest that our natural resources are distributed for common good.

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1
[1] Michael C. Blumm, “The Public trust doctrine and Private Property: The accommodation principle”, 27(3), Pace and Environmental Law Review, 666 (Summer, 2010). [2] Supra note 18 at 12. [3] Supra note 142.
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