Reimagining the Right to Property
Reimagining the Right to Property for Indigenous Tribe
Property is a fundamental right enshrined in Pakistan’s constitution. Fundamental rights are essentially inalienable natural rights that safeguard the people’s freedoms and liberties against the state, as they are universal human rights endowed by nature. Property rights, particularly land rights, are critical for a country’s social, economic, and cultural development. These rights are rooted in culture and contribute to the nation’s overall economic growth, making them an indispensable component of the financial ecosystem. The concept of property has evolved, from its origins in Lockean Rights to the contemporary ‘bundle of rights theory. Because property rights establish and regulate social and economic relationships between communities, individuals, and the state, courts play a critical role in interpreting novel property rights conceptions. This is especially pertinent in the context of Pakistan, where a landmark ruling by the Balochistan High Court declared indigenous tribes to be the owners of vast swaths of ‘unsettled land,’ rather than the contesting provincial government, thus reimagining the right to property enshrined in Pakistan’s constitution.
This blog by the Iqbal Institute of Policy Studies will discuss property rights in Pakistan in detail, as well as the impact of the landmark Balochistan High Court judgment on indigenous tribes’ rights and the judgment’s global impact.
Property Rights Under Pakistan’s Constitution
The Islamic Republic of Pakistan’s constitution defines property rights in detail in Articles 23, 24, 172, and 173. These provisions supplement the various statutes governing property rights, such as the transfer and ownership of immovable property, its registration, taxes and levies, and possession of the property.
Articles 23 and 24 of Pakistan’s constitution are enshrined as fundamental rights. The former enables citizens to acquire, hold, and dispose of property, whereas the latter safeguards property rights following Pakistani law (Article 23, Article 24).
Article 172 establishes the law governing ‘ownerless property,’ vesting the property’s interests in the provincial and federal governments in the absence of a legitimate owner. The continental shelf, territorial waters, and natural resources such as mineral oil and natural gas are included (Article 172).
Article 173 delegates executive authority to the federation and province(s) to acquire, sell and purchase property, as well as to enter into contracts on behalf of the state (Article 173).
The Impact of Indigenous Tribes’ Rights Judgment
Balochistan is Pakistan’s largest province by area, accounting for more than 43 percent of the country’s total acreage. Because of the region’s distinctive geographical setting, more than 90% of the total land is ‘unsettled,’ which means it is not documented in land records, and the provincial government becomes a candidate for ‘ownerless property’ under Article 172 of the constitution.
A group of petitioners, principally agriculturalists, lawyer(s), and representatives of indigenous tribes, filed two constitutional petitions in the Balochistan High Court, C.P. 1128/2020 and C.P. 1269/2018. The court merged both petitions into one court case because the subject matter was the same. The petitions asked the court to evaluate the status of undeveloped land in the province, as well as claim title and ownership of these indigenous land trenches. In the lawsuit, the provincial government was the respondent, opposing indigenous groups’ ownership and claiming title to the land instead of ‘ownerless property.’ The indigenous tribes have lived on these lands for hundreds of years, have cultivated them, and the forests and rivers have added enormous value to their way of life, making them indispensable to their survival. It was also said that large swaths of the plains were barren and uncultivated due to a lack of water for irrigation and supplies. It was also brought to the court’s attention that the government had failed to initiate settlement proceedings to bestow titles and ownership to such areas, because of which the indigenous tribes lacked documentary proof of possession.
Article 172 of the constitution was given a broader interpretation by the court in its landmark decision. The word “rightful owner” was to be understood in terms of a reasonable and legally valid claim to the land in question, according to the court. The claim could be supported by documentary proof of ownership or long-term possession and control of the property, resulting in a vested interest in the property that would be sufficient proof of ownership in a court of law. The court went on to say that the majority of the land was unsettled because there was no documentary proof, and that if documentary proof was the only method to prove ownership of the land, then the same concept extended to the government. Because no documentary evidence of ownership existed for any of these undeveloped sites, the collective possession and management of the land was adequate proof of ownership.
As a result, the court determined that these properties could not be called “ownerless property,” and that the landowners who were required to show their entitlements were legitimate owners, deserving of the blanket of protection afforded by fundamental property rights. The court also linked the lands to natural resources, forests, and livestock in the area as means of subsistence for indigenous communities, effectively granting them title to the lands
The Landmark Decision’s Global Impact
The normative incorporation of the rights of indigenous tribes and people around the world, by giving them ownership of the lands and [water bodies] they have lived for thousands of years, is the most current argument in property rights. According to recent research published by the United Nations Food and Agriculture Organization (FAO), there is a direct link between indigenous groups gaining land rights and climate action. According to the analysis, gaining property rights has allowed communities in Bolivia, Brazil, and Colombia to avoid annual carbon emissions equivalent to removing 12.6 million cars from the roads (FAO and FILAC, 2021).
Similarly, indigenous tribes in countries such as New Zealand, America, and South Africa are fighting for title and ownership of indigenous land based on long-standing occupancy, control, and a lifestyle reliant on natural resources. The Balochistan High Court’s groundbreaking decision has set a precedent for indigenous people around the world and provided a ray of hope for the survival of indigenous ideologies.
The Balochistan High Court’s interpretation of the property right has given several opportunities for the incorporation of indigenous tribes and communities’ rights inside the legal framework. In the lack of documentary evidence, the court deemed lengthy occupancy and generational authority over these huge pits of unsettled lands adequate proof of ownership. However, it is necessary to read and understand this verdict in the context of huge stretches of common rural land that remain unreported due to the absence of formal governance mechanisms. When a competent structure of land records and land register systems exists, such as in urban areas and most of Pakistan’s other provinces, longstanding occupancy may not be sufficient evidence to establish ownership and title to the land. However, this case will serve as a precedent for future title claims to indigenous lands worldwide.