Whither the Khoisan With the Khoisan Act 3 of 2019? Is the Noongar Settlement Down Under a Preferable Process?

Self-determination is no longer seriously challenged as a right under international law. This has been confirmed by the International Court of Justice (ICJ) and in South African case law. Since the 1960s, the international-law debate relating to self-determination has, to a large extent, been dominated by claims of indigenous peoples to self-determination. This debate culminated in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which has been overwhelmingly endorsed by members of the UN General Assembly. In practice, self-determination nowadays means internal self-determination, which must be distinguished from external self-determination, such as secession, which is extremely rare. Internal self-determination comprises the right of an indigenous people living in a sovereign state to determine freely their political status and freely pursue their economic, social and cultural development. The terms “indigenous people” and “indigenous community” have become synonymous with “ethnocultural people” or “ethnocultural community”, and the distinctions between the two are no longer watertight. It is submitted that the main purpose of the Traditional and Khoi-San Leadership Act 3 of 2019 (Khoisan Act) is aimed at the Khoisan as an ethnocultural community, although this is not evident in the Preamble of the Act. In discussing the Khoisan Act, attention is paid to its serious deficiencies. A brief reference is made to the Hungarian Roma, where an institutionalised exercise similar to that of the Khoisan Act has been embarked upon. It is a moot point whether the Khoisan Act achieves its objectives. It is proposed that the perceived objectives of the Khoisan Act can be better achieved by following the example of the Noongar Settlement in Western Australia, which has become a valuable case study on the recognition of minority rights.