Le corti e il diritto degli indigeni alla terra ancestrale: un'analisi comparata della giurisprudenza tra dialogo, mimesi e specialità

The paper aims to analyse the decisions on the land rights of indigenous peoples taken by some African courts (i.e., by the Constitutional Courts of Uganda and South Africa and by the High Court of Botswana), comparing them with the judgments issued on the same subject by the Canadian Supreme Court and the Australian High Court. By analysing the lines of argumentation adopted by these courts, this paper aims to capture phenomena of dialogue, contaminations and hybridizations. Indeed, in adjudicating on indigenous peoples’ land rights, the African courts referred to the decisions of their Australian and Canadian colleagues, and, to a certain extent, borrowed the reasoning developed by the latter on similar claims. However, at the same time, a relevant peculiarity marks the approach of African courts: the legal, conceptual and cultural status recognized to indigenous identities and customary laws, in a context of deep legal pluralism.