Who is ‘Indigenous’ for Customary Law Purposes?
A preliminary issue that would need to be addressed is how the law would determine who is an indigenous person – a relevant question if, as is likely, choice of law rules referred to indigenous identity as a criterion of their operation. A number of fundamental principles are relevant in this regard. First, the compulsory allocation of persons to groups through legislation is inconsistent with the individual’s freedom of association. Furthermore, if the allocation is coupled with discrimination in the sense that, the enjoyment of legal rights is made contingent upon allocation to a particular group, then it is also prima facie inconsistent with the right to equality. Second, it follows that if compulsory allocation to racial groups by law is impermissible, freedom of association implies that the individual should be entitled to state whether they choose to associate with a particular group for legal purposes. However, the third consideration is that because association contains an elem
