common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
sovereignty
Sovereignty is the defining authority within individual consciousness, social construct, or territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the perso ...
under
settler colonialism
Settler colonialism is a structure that perpetuates the elimination of Indigenous people and cultures to replace them with a settler society. Some, but not all, scholars argue that settler colonialism is inherently genocidal. It may be enacted ...
. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary significantly by jurisdiction. Nearly all jurisdictions are in agreement that aboriginal title is
inalienable
''InAlienable'' is a 2007 science fiction film with horror and comic elements, written and executive produced by Walter Koenig, and directed by Robert Dyke. It was the first collaboration of Koenig and Dyke since their 1989 production of ''Moon ...
, and that it may be held either individually or collectively.
Aboriginal title is also referred to as indigenous title, native title ( in Australia), original Indian title ( in the United States), and customary title (in New Zealand). Aboriginal title jurisprudence is related to
indigenous rights
Indigenous rights are those rights that exist in recognition of the specific condition of the Indigenous peoples. This includes not only the most basic human rights of physical survival and integrity, but also the rights over their land (includ ...
, influencing and influenced by non-land issues, such as whether the government owes a
fiduciary duty
A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for examp ...
to indigenous peoples. While the judge-made doctrine arises from customary international law, it has been codified nationally by legislation, treaties, and constitutions.
Aboriginal title was first acknowledged in the early 19th century, in decisions in which
indigenous peoples
Indigenous peoples are culturally distinct ethnic groups whose members are directly descended from the earliest known inhabitants of a particular geographic region and, to some extent, maintain the language and culture of those original people ...
were not a party. Significant aboriginal title litigation resulting in victories for indigenous peoples did not arise until recent decades. The majority of court cases have been litigated in Australia,
Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
,
Malaysia
Malaysia ( ; ) is a country in Southeast Asia. The federation, federal constitutional monarchy consists of States and federal territories of Malaysia, thirteen states and three federal territories, separated by the South China Sea into two r ...
,
New Zealand
New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island count ...
, and the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
. Aboriginal title is an important area of
comparative law
Comparative law is the study of differences and similarities between the law (legal systems) of different countries. More specifically, it involves the study of the different legal "systems" (or "families") in existence in the world, including the ...
, with many cases being cited as persuasive authority across jurisdictions. Legislated
Indigenous land rights
Indigenous land rights are the rights of Indigenous peoples to land and natural resources therein, either individually or collectively, mostly in colonised countries. Land and resource-related rights are of fundamental importance to Indigeno ...
often follow from the recognition of
native title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, ...
.
British colonial legacy
Aboriginal title arose at the intersection of three common law doctrines articulated by the
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Aug ...
: the
Act of State
The act-of-state doctrine or federal act of state doctrine is a principle of federal common law in the United States which states, in circumstances where it applies, that courts in the United States will not rule on the validity of another governm ...
doctrine, the
Doctrine of Continuity
Doctrine (from la, doctrina, meaning "teaching, instruction") is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a belief system ...
, and the
Recognition Doctrine
Recognition may refer to:
*Award
An award, sometimes called a distinction, is something given to a recipient as a token of recognition of excellence in a certain field. When the token is a medal, ribbon or other item designed for wearing, it ...
., 1989, at 161–179. The Act of State doctrine held that the Crown could confiscate or extinguish real or personal property rights in the process of conquering, without scrutiny from any British court, but could not perpetrate an Act of State against its own subjects. The Doctrine of Continuity presumed that the Crown did not intend to extinguish private property upon acquiring sovereignty, and thus that pre-existing interests were enforceable under British law. Its mirror was the Recognition Doctrine, which held that private property rights were presumed to be extinguished in the absence of explicit recognition.
In 1608, the same year in which the Doctrine of Continuity emerged, Edward Coke delivered a famous dictum in ''
Calvin's Case
''Calvin's Case'' (1608), 77 ER 377, (1608) Co Rep 1a, also known as the ''Case of the Postnati'', was a 1608 English legal decision establishing that a child born in Scotland, after the Union of the Crowns under King James VI and I in 1603, wa ...
'' (1608) that the laws of all non-Christians would be abrogated upon their conquest. Coke's view was not put into practice, but was rejected by
Lord Mansfield
William Murray, 1st Earl of Mansfield, PC, SL (2 March 170520 March 1793) was a British barrister, politician and judge noted for his reform of English law. Born to Scottish nobility, he was educated in Perth, Scotland, before moving to Lond ...
in 1774. The two doctrines were reconciled, with the Doctrine of Continuity prevailing in nearly all situations (except, for example, public property of the predecessor state) in ''
Oyekan v Adele Oyekan is a West African surname of Yoruba origin, which means "the next to be crowned". The name may refer to:
*Adeyinka Oyekan (Oyekan II) (1911–2003), Yoruba monarch
*Lawson Oyekan (born 1961), British sculptor
*Oyekan I
Oba Oyekan I (die ...
'' (1957).
The first Indigenous land rights case under the common law, '' Mohegan Indians v. Connecticut'', was litigated from 1705 to 1773, with the Privy Council affirming without opinion the judgement of a non-judicial tribunal.For modern litigation over the same land, see ''Mohegan Tribe v. Connecticut'', 483 F. Supp. 597 (D. Conn. 1980), ''aff'd'', 638 F.2d 612 (2d Cir. 1980), ''cert. denied'' 452 U.S. 968, ''on remand'', 528 F. Supp. 1359 (D. Conn. 1982). Other important Privy Council decisions include '' In re Southern Rhodesia'' (1919) and '' Amodu Tijani v. Southern Nigeria (Secretary)'' (1921).Amodu Tijani v. Southern Nigeria (Secretary), 9212 AC 399.
The former rejected a claim for aboriginal title, noting that:
Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged.
Two years later, ''Amodu Tijani'' laid the basis for several elements of the modern aboriginal title doctrine, upholding a customary land claim and urging the need to "study of the history of the particular community and its usages in each case." Subsequently, the Privy Council issued many opinions confirming the existence of aboriginal title, and upholding customary land claims; many of these arose in African colonies. Modern decisions have heaped criticism upon the views expressed in ''Southern Rhodesia''.
Doctrinal overview
Recognition
The requirements for establishing an aboriginal title to the land vary across countries, but generally speaking, the aboriginal claimant must establish (exclusive) occupation (or possession) from a long time ago, generally before the assertion of
sovereignty
Sovereignty is the defining authority within individual consciousness, social construct, or territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the perso ...
radical title
Allodial title constitutes ownership of real property (land, buildings, and fixtures) that is independent of any superior landlord. Allodial title is related to the concept of land held "in allodium", or land ownership by occupancy and defense ...
in any jurisdiction. Instead, its content is generally described as a
usufruct
Usufruct () is a limited real right (or ''in rem'' right) found in civil-law and mixed jurisdictions that unites the two property interests of ''usus'' and ''fructus'':
* ''Usus'' (''use'') is the right to use or enjoy a thing possessed, direct ...
, i.e. a right to use, although in practice this may mean anything from a right to use land for specific, enumerated purposes, or a general right to use which approximates fee simple.
It is common ground among the relevant jurisdictions that aboriginal title is inalienable, in the sense that it cannot be transferred except to the general government (known, in many of the relevant jurisdictions, as "
the Crown
The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has different ...
")although Malaysia allows aboriginal title to be sold between indigenous peoples, unless contrary to customary law. Especially in Australia, the content of aboriginal title varies with the degree to which claimants are able to satisfy the standard of proof for recognition. In particular, the content of aboriginal title may be tied to the traditions and customs of the indigenous peoples, and only accommodate growth and change to a limited extent.
Extinguishment
Aboriginal title can be extinguished by the general government, but again, the requirement to do this varies by country. Some require the legislature to be explicit when it does this, others hold that extinguishment can be inferred from the government's treatment of the land. In Canada, the Crown cannot extinguish aboriginal title without the explicit prior informed consent of the proper aboriginal title holders. New Zealand formerly required consent, but today requires only a justification, akin to a public purpose requirement.
Jurisdictions differ on whether the state is required to pay compensation upon extinguishing aboriginal title. Theories for the payment of compensation include the right to property, as protected by constitutional or common law, and the breach of a
fiduciary duty
A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for examp ...
.
Percentage of land
*
Native title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, ...
in Australia - (16% of the country's land area)
*
Indian reserve
In Canada, an Indian reserve (french: réserve indienne) is specified by the '' Indian Act'' as a "tract of land, the legal title to which is vested in Her Majesty,
that has been set apart by Her Majesty for the use and benefit of a band."
In ...
s in Canada - (0.2804% of the country's land area)
*
Native Community Lands Native Community Lands ( es, Tierra Comunitaria de Origen, acronym: TCO; also translated as Communal Lands of Origin), according to Bolivian law, are territories held by indigenous people through collective title. The creation of these territories ...
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
- (2.308% of the country's land area)
History by jurisdiction
Australia
Australia did not experience native title litigation until the 1970s, when
Indigenous Australians
Indigenous Australians or Australian First Nations are people with familial heritage from, and membership in, the ethnic groups that lived in Australia before British colonisation. They consist of two distinct groups: the Aboriginal peoples ...
Torres Strait Islander
Torres Strait Islanders () are the Indigenous Melanesian people of the Torres Strait Islands, which are part of the state of Queensland, Australia. Ethnically distinct from the Aboriginal people of the rest of Australia, they are often groupe ...
people) became more politically active, after being included in the Australian citizenry as a result of the
1967 referendum
The 1967 Australian referendum occurred on 27 May 1967 under the Holt Government. It contained three topics asked about in two questions, regarding the passage of two bills to alter the Australian Constitution.
The first question (''Constitution ...
Milirrpum v Nabalco Pty Ltd
''Milirrpum v Nabalco Pty Ltd'', also known as the Gove land rights case because its subject was land known as the Gove Peninsula in the Northern Territory, was the first litigation on native title in Australia, and the first significant lega ...
'' (the "Gove land rights case").''
Milirrpum v Nabalco Pty Ltd
''Milirrpum v Nabalco Pty Ltd'', also known as the Gove land rights case because its subject was land known as the Gove Peninsula in the Northern Territory, was the first litigation on native title in Australia, and the first significant lega ...
'' (1971) 17 FLR 141 (27 April 1971) Supreme Court (NT, Australia). The
Aboriginal Land Rights Commission
The Aboriginal Land Rights Commission, also known as the Woodward Royal Commission, was a Royal Commission that existed from 1973 to 1974 with the purpose to inquire into appropriate ways to recognise Aboriginal land rights in the Northern Terr ...
was established in 1973 in the wake of ''Milirrpum''.
Paul Coe
Paul Coe (born 4 February 1949), a Wiradjuri man born at Erambie Mission in Cowra, is an Australian Aboriginal activist. He is known for his advocacy of Aboriginal rights, with involvement in the publicity drive for the 1967 referendum, and the ...
, in ''Coe v Commonwealth'' (1979), attempted (unsuccessfully) to bring a
class action
A class action, also known as a class-action lawsuit, class suit, or representative action, is a type of lawsuit where one of the parties is a group of people who are represented collectively by a member or members of that group. The class actio ...
on behalf of all Aborigines claiming all of Australia. The
Aboriginal Land Rights Act 1976
The ''Aboriginal Land Rights (Northern Territory) Act 1976'' (ALRA) is Australian federal government legislation that provides the basis upon which Aboriginal Australian people in the Northern Territory can claim rights to land based on tradit ...
,. established a statutory procedure that returned approximately 40% of the
Northern Territory
The Northern Territory (commonly abbreviated as NT; formally the Northern Territory of Australia) is an Australian territory in the central and central northern regions of Australia. The Northern Territory shares its borders with Western Aust ...
South Australia
South Australia (commonly abbreviated as SA) is a state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of , it is the fourth-largest of Australia's states and territories ...
Racial Discrimination Act 1975
The ''Racial Discrimination Act 1975'' (Cth). is an Act of the Australian Parliament, which was enacted on 11 June 1975 and passed by the Whitlam government. The Act makes racial discrimination in certain contexts unlawful in Australia, and al ...
'',. overruled ''Milirrpum'' in ''
Mabo v Queensland (No 2)
''Mabo v Queensland (No 2)'' (commonly known as ''Mabo'') is a decision of the High Court of Australia, decided on 3 June 1992.. It is a landmark case, brought by Eddie Mabo against the State of Queensland. The case is notable for first reco ...
'' (1992).. ''Mabo No 2'', rejecting ''
terra nullius
''Terra nullius'' (, plural ''terrae nullius'') is a Latin expression meaning " nobody's land".
It was a principle sometimes used in international law to justify claims that territory may be acquired by a state's occupation of it.
:
:
...
'', held that native title exists (6–1) and is extinguishable by the sovereign (7–0), without compensation (4–3). In the wake of the decision, the Australian Parliament passed the Native Title Act 1993 (NTA),. codifying the doctrine and establishing the
National Native Title Tribunal
The National Native Title Tribunal (NNTT) is an independent body established under the ''Native Title Act 1993'' in Australia as a special measure for the advancement and protection of Aboriginal and Torres Strait Islander peoples (Indigenous Aus ...
(NNTT). ''Western Australia v Commonwealth'' upheld the NTA and struck down a conflicting Western Australia statute.
In 1996, the High Court held that pastoral leases, which cover nearly half of Australia, do not extinguish native title in ''
Wik Peoples v Queensland
''Wik Peoples v The State of Queensland''. (commonly known as the Wik decision) is a decision of the High Court of Australia delivered on 23 December 1996 on whether statutory leases extinguish native title rights. The court found that the stat ...
''.. In response, Parliament passed the
Native Title Amendment Act 1998
The ''Native Title Act 1993'' (Cth) is a law passed by the Australian Parliament, the purpose of which is "to provide a national system for the recognition and protection of native title and for its co-existence with the national land managemen ...
(the "Ten Point Plan"), extinguishing a variety of Aboriginal land rights and giving state governments the ability to follow suit.
'' Western Australia v Ward'' (2002) held that native title is a
bundle of rights
The bundle of rights is a metaphor to explain the complexities of property ownership. Law school professors of introductory property law courses frequently use this conceptualization to describe "full" property ownership as a partition of var ...
, which may be extinguished one by one, for example, by a mining lease. '' Yorta Yorta v Victoria'' (2002), an appeal from the first native title claim to go to trial since the Native Title Act, adopted strict requirements of continuity of traditional laws and customs for native title claims to succeed.
Belize
Belize (; bzj, Bileez) is a Caribbean and Central American country on the northeastern coast of Central America. It is bordered by Mexico to the north, the Caribbean Sea to the east, and Guatemala to the west and south. It also shares a wate ...
under Spanish rule with limited property rights, were enforceable against the Crown, and had been upgraded to fee simple during the gap between Spanish and British sovereignty. This decision did not involve indigenous peoples, but was an important example of the key doctrines that underlie aboriginal title.
In 1996, the Toledo Maya Cultural Council (TMCC) and the Toledo Alcaldes Association (TAA) filed a claim against the government of Belize in the Belize Supreme Court, but the Court failed to act on the claim.Supreme Court Claims Nos. 171 and 172 of 2007 (Consolidated) re Maya land rights . The Maya peoples of the
Toledo District
Toledo District is the southernmost district in Belize, and Punta Gorda is the District capital. It is the second most developed region in the country (according to the Human Development Index (HDI)). The district has a diverse topography whic ...
filed a complaint with the Inter-American Commission on Human Rights (IACHR), which sided with the Maya in 2004 and stated that the failure of the government of Belize to demarcate and title the Maya cultural lands was a violation of the right to property in Article XXIII of the American Declaration. In 2007, Chief Justice Abdulai Conteh ruled in favor of the Maya communities of Conejo and Santa Cruz, citing the IACHR judgement and key precedents from other common law jurisdictions. The government entered into negotiations with the Maya communities, but ultimately refused to enforce the judgement.
In 2008, The TMCC and TAA, and many individual '' alcaldes'', filed a representative action on behalf of all the Maya communities of the Toledo District, and on 28 June 2010, CJ Conteh ruled in favor of the claimants, declaring that Maya customary land tenure exists in all the Maya villages of the Toledo District, and gives rise to collective and individual property rights under sections 3(d) and 17 of the Belize Constitution.Supreme Court Claim No. 366 of 2008 – The Maya Leaders Alliance and the Toledo Alcaldes et al v The Attorney General of Belize et al and Francis Johnston et al .
Botswana
A
Botswana
Botswana (, ), officially the Republic of Botswana ( tn, Lefatshe la Botswana, label= Setswana, ), is a landlocked country in Southern Africa. Botswana is topographically flat, with approximately 70 percent of its territory being the Kalaha ...
Roy Sesana
Roy Sesana (born c. 1950) is a San activist who worked together with the First People of the Kalahari for the rights of his tribe.
Biography
Sesana lives in New Xade in the central Kalahari and works as a traditional medicine man. He moved to ...
, which held that the San have the right to reside in the
Central Kalahari Game Reserve
Central Kalahari Game Reserve is an extensive national park in the Kalahari Desert of Botswana. Established in 1961 it covers an area of (larger than the Netherlands, and almost 10% of Botswana's total land area), making it the second largest game ...
(CKGR), which was violated by their 2001 eviction. The decision quoted ''Mabo'' and other international case law, and based the right on the San's occupation of their traditional lands from
time immemorial
Time immemorial ( la, Ab immemorabili) is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record". The phrase is used in legally significant contexts as well as ...
. The court described the right as a "right to use and occupy the lands" rather than a right of ownership. The government has interpreted the ruling very narrowly and has allowed only a small number of San to re-enter the CKGR.
Canada
Aboriginal title has been recognized in Common Law in
Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
usufruct
Usufruct () is a limited real right (or ''in rem'' right) found in civil-law and mixed jurisdictions that unites the two property interests of ''usus'' and ''fructus'':
* ''Usus'' (''use'') is the right to use or enjoy a thing possessed, direct ...
at the pleasure of the Queen. This case did not involve indigenous parties, but rather was a lumber dispute between the provincial government of Ontario and the federal government of Canada. ''St. Catharines'' was decided in the wake of the '' Indian Act'' (1876), which laid out an assimilationist policy towards the
Aboriginal peoples in Canada
In Canada, Indigenous groups comprise the First Nations, Inuit and Métis. Although ''Indian'' is a term still commonly used in legal documents, the descriptors ''Indian'' and '' Eskimo'' have fallen into disuse in Canada, and most consider the ...
(
First Nations
First Nations or first peoples may refer to:
* Indigenous peoples, for ethnic groups who are the earliest known inhabitants of an area.
Indigenous groups
*First Nations is commonly used to describe some Indigenous groups including:
**First Natio ...
,
Inuit
Inuit (; iu, ᐃᓄᐃᑦ 'the people', singular: Inuk, , dual: Inuuk, ) are a group of culturally similar indigenous peoples inhabiting the Arctic and subarctic regions of Greenland, Labrador, Quebec, Nunavut, the Northwest Territories ...
, and Métis). It allowed provinces to abrogate treaties (until 1951), and, from 1927, made it a federal crime to prosecute First Nation claims in court, raise money, or organize to pursue such claims.
''St. Catharines'' was more or less the prevailing law until ''
Calder v. British Columbia (Attorney General) Calder is a Scottish name and may refer to:
People
* Calder (surname)
*Calder baronets, two baronetcies created for people with the surname Calder
*Alexander Calder (1898-1976), the American sculptor known for his mobiles, son of Alexander Stirlin ...
'' (1973). All seven of the judges in ''Calder'' agreed that the claimed Aboriginal title existed, and did not solely depend upon the
Royal Proclamation of 1763
The Royal Proclamation of 1763 was issued by King George III on 7 October 1763. It followed the Treaty of Paris (1763), which formally ended the Seven Years' War and transferred French territory in North America to Great Britain. The Procla ...
.''
Calder v. British Columbia (Attorney General) Calder is a Scottish name and may refer to:
People
* Calder (surname)
*Calder baronets, two baronetcies created for people with the surname Calder
*Alexander Calder (1898-1976), the American sculptor known for his mobiles, son of Alexander Stirlin ...
'' (1973) 34 DRL (3d) 145. Six of the judges split 3–3 on the question of whether Aboriginal title had been extinguished. The
Nisga'a
The Nisga’a , often formerly spelled Nishga and spelled in the Nisga'a language as (pronounced ), are an Indigenous people of Canada in British Columbia. They reside in the Nass River valley of northwestern British Columbia. The name is a ...
did not prevail because the seventh justice, Pigeon J, found that the Court did not have jurisdiction to make a declaration in favour of the Nisga'a in the absence of a fiat of the Lieutenant-Governor of B.C. permitting suit against the provincial government.
Section 91(24) of the ''
Constitution Act, 1867
The ''Constitution Act, 1867'' (french: Loi constitutionnelle de 1867),''The Constitution Act, 1867'', 30 & 31 Victoria (U.K.), c. 3, http://canlii.ca/t/ldsw retrieved on 2019-03-14. originally enacted as the ''British North America Act, 186 ...
'' ("British North America Act 1867") gives the federal government exclusive jurisdiction over First Nations, and thus the exclusive ability to extinguish Aboriginal title. Section Thirty-five of the ''Constitution Act, 1982'' explicitly recognized and preserved aboriginal rights. '' R. v. Guerin'' (1982), the first Supreme Court of Canada decision handed down after the ''Constitution Act 1982'', declared that Aboriginal title was '' sui generis'' and that the federal government has a
fiduciary duty
A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for examp ...
to preserve it. ''
R. v. Simon
R. or r. may refer to:
* ''Reign'', the period of time during which an Emperor, king, queen, etc., is ruler.
* '' Rex'', abbreviated as R., the Latin word meaning King
* ''Regina'', abbreviated as R., the Latin word meaning Queen
* or , abbreviat ...
'' (1985) overruled '' R. v. Syliboy'' (1929) which had held that Aboriginal peoples had no capacity to enter into treaties, and thus that the
Numbered Treaties
The Numbered Treaties (or Post-Confederation Treaties) are a series of eleven treaties signed between the First Nations, one of three groups of Indigenous peoples in Canada, and the reigning monarch of Canada (Victoria, Edward VII or George V) ...
were void. A variety of non-land rights cases, anchored on the ''Constitution Act 1982'', have also been influential.
'' Delgamuukw v. British Columbia'' (1997) laid down the essentials of the current test to prove Aboriginal title: "in order to make out a claim for original title, the original group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive."
Subsequent decisions have drawn on the fiduciary duty to limit the ways in which the Crown can extinguish Aboriginal title, and to require prior consultation where the government has knowledge of a credible, but yet unproven, claim to Aboriginal title.
In 2014 the Supreme Court ruled unanimously for the plaintiff in '' Tsilhqot'in Nation v. British Columbia''. Rejecting the government's claim that Aboriginal title applied only to villages and fishing sites, it instead agreed with the First Nation that Aboriginal title extends to the entire traditional territory of an indigenous group, even if that group was semi-nomadic and did not create settlements on that territory. It also stated that governments must have consent from First Nations which hold Aboriginal title in order to approve developments on that land, and governments can override the First Nation's wishes only in exceptional circumstances. The court reaffirmed, however, that areas under Aboriginal title are not outside the jurisdiction of the provinces, and provincial law still applies.
Japan
In 2008, Japan gave partial recognition to the Ainu people. However, land rights were not given for another eleven years.
In 2019, Japan fully recognised the Ainu people as the indigenous people of Japan and gave them some land rights if requested.
Malaysia
Malaysia
Malaysia ( ; ) is a country in Southeast Asia. The federation, federal constitutional monarchy consists of States and federal territories of Malaysia, thirteen states and three federal territories, separated by the South China Sea into two r ...
recognised various statutory rights related to native customary laws ("'' adat''") before its courts acknowledged the independent existence of common law aboriginal title. Native Customary Rights (NCR) and Native Customary Land (NCL) are provided for under section 4(2) of the National Land Code 1965, the Sarawak Land Code 1957, the respective provisions of the National Land Code (Penang and Malacca Titles) Act 1963, and the Customary Tenure Enactment (FMS). Rajah's Order IX of 1875 recognized aboriginal title by providing for its extinguishment where cleared land was abandoned. Rajah's Order VIII of 1920 ("Land Order 1920") divided "State Lands" into four categories, one of them being "native holdings", and provided for the registration of customary holdings. The Aboriginal People's Act 1954 creates aboriginal areas and reserves, also providing for state acquisition of land without compensation. Article 160 of the Federal Constitution declares that custom has the force of law.
Malaysian court decisions from the 1950s on have held that customary lands were
inalienable
''InAlienable'' is a 2007 science fiction film with horror and comic elements, written and executive produced by Walter Koenig, and directed by Robert Dyke. It was the first collaboration of Koenig and Dyke since their 1989 production of ''Moon ...
. In the 1970s, aboriginal rights were declared to be property rights, as protected by the Federal Constitution. Decisions in the 1970s and 1980s blocked state-sanctioned logging on customary land.
In 1997, Mokhtar Sidin JCA of the Jahore High Court became the first Malaysian judge to acknowledge common law aboriginal title in '' Adong bin Kuwau v. Kerajaan Negeri Johor''. The High Court cited the Federal Constitution and the Aboriginal Peoples Act, as well as decisions from the Privy Council, Australia, Canada, New Zealand, and the United States. That case was the first time where Orang Asli directly and expressly challenged a state taking of their land. The opinion held that: "the aborigines' common law rights include, inter alia, the right to live on their land as their forefathers had lived." The case was upheld on appeal, but the Federal Court did not write an opinion.
Later High Court and Court of Appeal decisions built upon the foundation of ''Adong bin Kuwau''. However, the ability for indigenous peoples to bring such suits was seriously limited by a 2005 ruling that claims must be brought under O. 53 RHC, rather than the representative action provision.
In 2007, the
Federal Court of Malaysia
The Federal Court of Malaysia ( ms, Mahkamah Persekutuan Malaysia) is the highest court and the final appellate court in Malaysia. It is housed in the Palace of Justice in Putrajaya. The court was established during Malaya's independence in 1 ...
wrote an opinion endorsing common law aboriginal title for the first time in ''
Superintendent of Lands v. Madeli bin Salleh
Superintendent may refer to:
*Superintendent (police), Superintendent of Police (SP), or Senior Superintendent of Police (SSP), a police rank
*Prison warden or Superintendent, a prison administrator
*Superintendent (ecclesiastical), a church exec ...
''.''Superintendent of Lands & Surveys Miri Division & Anor v Madeli bin Salleh (suing as the administrator of the estate of the deceased, Salleh bin Kilong)'' 0076 CLJ 509; 0082 MLJ 677. The Federal Court endorsed ''Mabo'' and ''Calder'', stating that "the proposition of law as enunciated in these two cases reflected the common law position with regard to native titles throughout the Commonwealth." The High Court of Kuching held in 2010, for the first time, that NCL may be transferred for consideration between members of the same community, as long as such transfers are not contrary to customary law.
New Zealand
New Zealand was the second jurisdiction in the world to recognize aboriginal title, but a slew of extinguishing legislation (beginning with the
New Zealand land confiscations
The New Zealand land confiscations took place during the 1860s to punish the Kīngitanga movement for attempting to set up an alternative, Māori, form of government that forbade the selling of land to European settlers. The confiscation law tar ...
) has left the
Māori
Māori or Maori can refer to:
Relating to the Māori people
* Māori people of New Zealand, or members of that group
* Māori language, the language of the Māori people of New Zealand
* Māori culture
* Cook Islanders, the Māori people of the C ...
with little to claim except for
river beds
A stream bed or streambed is the bottom of a stream or river (bathymetry) or the physical confine of the normal water flow ( channel). The lateral confines or channel margins are known as the stream banks or river banks, during all but flood ...
, lake beds, and the foreshore and seabed. In 1847, in a decision that was not appealed to the Privy Council, the Supreme Court of the colony of New Zealand recognized aboriginal title in ''
R v Symonds
''R v Symonds'' ''(The Queen v Symonds)'' incorporated the concept of aboriginal title into New Zealand law and upheld the government's pre-emptive right of purchase to Māori land deriving from the common law and expressed in the Treaty of Wa ...
''.''
R v Symonds
''R v Symonds'' ''(The Queen v Symonds)'' incorporated the concept of aboriginal title into New Zealand law and upheld the government's pre-emptive right of purchase to Māori land deriving from the common law and expressed in the Treaty of Wa ...
'' The decision was based on common law and the
Treaty of Waitangi
The Treaty of Waitangi ( mi, Te Tiriti o Waitangi) is a document of central importance to the History of New Zealand, history, to the political constitution of the state, and to the national mythos of New Zealand. It has played a major role in ...
(1840). Chapman J went farther than any judge—before or since—in declaring that aboriginal title "cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers".
The New Zealand Parliament responded with the ''Native Lands Act 1862'', the ''Native Rights Act 1865'' and the ''Native Lands Act 1865'' which established the Native Land Court (today the
Māori Land Court
The Māori Land Court (Māori: Te Kōti Whenua Māori) is the specialist court of record in New Zealand that hears matters relating to Māori land.
Māori Land Court history
The Māori Land Court was established in 1865 as the Native Land Cou ...
) to hear aboriginal title claims, and—if proven—convert them into freehold interests that could be sold to
Pākehā
Pākehā (or Pakeha; ; ) is a Māori term for New Zealanders primarily of European descent. Pākehā is not a legal concept and has no definition under New Zealand law. The term can apply to fair-skinned persons, or to any non- Māori New Z ...
(New Zealanders of European descent). That court created the "1840 rule", which converted Māori interests into fee simple if they were sufficiently in existence in 1840, or else disregarded them. ''Symonds'' remained the guiding principle, until '' Wi Parata v the Bishop of Wellington'' (1877). ''Wi Parata'' undid ''Symonds'', advocating the doctrine of ''
terra nullius
''Terra nullius'' (, plural ''terrae nullius'') is a Latin expression meaning " nobody's land".
It was a principle sometimes used in international law to justify claims that territory may be acquired by a state's occupation of it.
:
:
...
'' and declaring the Treaty of Waitangi unenforceable.
The Privy Council disagreed in '' Nireaha Tamaki v Baker'', and other rulings, but courts in New Zealand continued to hand down decisions materially similar to ''Wi Parata''. The Coal Mines Amendment Act 1903Currently, section 261 of the Coal Mines Act 1979. and the Native Land Act 1909 declared aboriginal title unenforceable against the Crown. Eventually, the Privy Council acquiesced to the view that the Treaty was non-justiciable.
Land was also lost under other legislation. The Counties Act 1886 s.245 said that tracks, "''over any Crown lands or Native lands, and generally used without obstruction as roads, shall, for the purposes of this section, be deemed to be public roads, not exceeding sixty-six feet in width, and under the control of the Council''". Opposition to such confiscation was met by force, as at Opuatia in 1894. A series of Acts, beginning a year after the Treaty of Waitangi with the Land Claims Ordinance 1841, allowed the government to take and sell 'Waste Lands'.
Favorable court decisions turned aboriginal title litigation towards the lake beds, but the Māori were unsuccessful in claiming the rivers the beaches, and customary fishing rights on the foreshore. The
Limitation Act 1950 Limitation may refer to:
*A disclaimer for research done in an experiment or study
*A Statute of limitations
A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum ...
established a 12-year
statute of limitations
A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. ("Time for commencing proceedings") In ...
for aboriginal title claims (6 years for damages), and the Maori Affairs Act 1953 prevented the enforcement of customary tenure against the Crown. The
Treaty of Waitangi Act 1975
The Treaty of Waitangi Act 1975 established the Waitangi Tribunal and gave the Treaty of Waitangi recognition in New Zealand law for the first time. The Tribunal was empowered to investigate possible breaches of the Treaty by the New Zealand gov ...
created the
Waitangi Tribunal
The Waitangi Tribunal (Māori: ''Te Rōpū Whakamana i te Tiriti o Waitangi'') is a New Zealand permanent commission of inquiry established under the Treaty of Waitangi Act 1975. It is charged with investigating and making recommendations on cla ...
to issue non-binding decisions, concerning alleged breaches of the Treaty, and facilitate settlements.
'' Te Weehi v Regional Fisheries Office'' (1986) was the first modern case to recognize an aboriginal title claim in a New Zealand court since ''Wi Parata'', granting non-exclusive customary fishing rights. The Court cited the writings of Dr Paul McHugh and indicated that whilst the Treaty of Waitangi confirmed those property rights, their legal foundation was the common law principle of continuity. The Crown did not appeal ''Te Weehi'' which was regarded as the motivation for Crown settlement of the sea fisheries claims (1992). Subsequent cases began meanwhile—and apart from the common law doctrine—to rehabilitate the Treaty of Waitangi, declaring it the "fabric of New Zealand society" and thus relevant even to legislation of general applicability. ''
New Zealand Maori Council v Attorney-General
''New Zealand Maori Council v Attorney-General, ''also known as the "Lands" case or "SOE" case, was a seminal New Zealand legal decision marking the beginning of the common law development of the principles of the Treaty of Waitangi.
Backgroun ...
'' held that the government owed a duty analogous to a
fiduciary duty
A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for examp ...
toward the Māori. This cleared the way for a variety of Treaty-based non-land Māori customary rights. By this time the Waitangi Tribunal in its ''Muriwhenua Fishing Report'' (1988) was describing Treaty-based and common law aboriginal title derived rights as complementary and having an 'aura' of their own.
Circa the
Te Ture Whenua Māori Act 1993
Te Ture Whenua Māori Act 1993 (or the Māori Land Act 1993) is a statute of the Parliament of New Zealand to "reform the laws relating to Māori people, Māori land in accordance with the principles set out in the Preamble". These principles " ...
, less than 5% of New Zealand was held as Māori customary land. In 2002, the Privy Council confirmed that the Maori Land Court, which does not have
judicial review
Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
jurisdiction, was the exclusive forum for territorial aboriginal title claims (i.e. those equivalent to a customary title claim) In 2003, ''
Ngati Apa v Attorney-General
''Ngati Apa v Attorney-General'' was a landmark legal decision that sparked the New Zealand foreshore and seabed controversy. The case arose from an application by eight northern South Island iwi for orders declaring the foreshore and seabed o ...
'' overruled '' In Re the Ninety-Mile Beach'' and ''Wi Parata'', declaring that Māori could bring claims to the foreshore in Land Court. The Court also indicated that customary aboriginal title interests (non-territorial) might also remain around the coastline. The
Foreshore and Seabed Act 2004
The Foreshore and Seabed Act 2004 is a former Act of the Parliament of New Zealand. It overruled the 2003 decision of the Court of Appeal in '' Ngati Apa v Attorney-General.'' Its passage arose out of, and further fueled, the New Zealand fo ...
extinguished those rights before any lower court could hear a claim to either territorial customary title (the Maori Land Court) or non-territorial customary rights (the High Court's inherent common law jurisdiction). That legislation has been condemned by the
Committee on the Elimination of Racial Discrimination
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is a United Nations convention. A third -generation human rights instrument, the Convention commits its members to the elimination of racial discri ...
. The 2004 Act was repealed with the passage of the
Marine and Coastal Area (Takutai Moana) Act 2011
The Marine and Coastal Area (Takutai Moana) Act 2011 is an Act of the New Zealand Parliament created to replace the Foreshore and Seabed Act 2004. It was brought in by the fifth National government and creates a property class for the marine a ...
.
Papua New Guinea
The High Court of Australia, which had appellate jurisdiction before 1975, recognized aboriginal title in
Papua New Guinea
Papua New Guinea (abbreviated PNG; , ; tpi, Papua Niugini; ho, Papua Niu Gini), officially the Independent State of Papua New Guinea ( tpi, Independen Stet bilong Papua Niugini; ho, Independen Stet bilong Papua Niu Gini), is a country i ...
Administration of Papua and New Guinea v Daera Guba
Administration may refer to:
Management of organizations
* Management, the act of directing people towards accomplishing a goal
** Administrative Assistant, traditionally known as a Secretary, or also known as an administrative officer, administ ...
Constitution of Papua New Guinea The law of Papua New Guinea consists of the Constitution, ordinary statutes enacted by Parliament or adopted at independence from overseas (together with their pendant regulations) and judge-made law.
Constitution
The Constitution is " autochtho ...
recognizes customary land tenure, and 97% of the land in the country remains unalienated.
South Africa
In ''
Alexkor v Richtersveld Community
''Alexkor v Richtersveld Community'', decided by the Constitutional Court of South Africa, Constitutional Court in 2001 in South Africa, 2001, is an important case in South African law, with a particular bearing on the law of property and the us ...
'' (2003), a suit under the
Restitution of Land Rights Act 1994
The law of restitution is the law of gains-based recovery, in which a court orders the defendant to ''give up'' their gains to the claimant. It should be contrasted with the law of compensation, the law of loss-based recovery, in which a court o ...
,''Alexkor Ltd v Richtersveld Community''
003 003, O03, 0O3, OO3 may refer to:
*003, fictional British 00 Agent
*003, former emergency telephone number for the Norwegian ambulance service (until 1986)
*1990 OO3, the asteroid 6131 Towen
* OO3 gauge model railway
*''O03 (O2)'' and other related ...
ZACC 18; 2004 (5) SA 460; 2003 (12) BCLR 1301. lawyers gathered case law from settler jurisdictions around the world, and judges of the
Constitutional Court
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ...
of South Africa talked frankly about Aboriginal title. The Land Claims Court had dismissed the complaint of the
Richtersveld
The Richtersveld is a desert landscape characterised by rugged kloofs and high mountains, situated in the north-western corner of South Africa’s Northern Cape province. It is full of changing scenery from flat, sandy, coastal plains, to crag ...
peoples, whose land was seized by a government owned diamond mining operation. The Supreme Court of Appeal disagreed, citing ''Mabo'' and ''Yorta Yorta'', but held that the aboriginal title had been extinguished. Whether the precedent will be the start of further land rights claims by indigenous peoples is an open question, given the cut-off date of 1913 in the Restitution Act.
The case ultimately did not lead to the inclusion of the Aboriginal title in South African doctrine. Legal scholars allege that this is because the application of terms like 'indigenous' and 'Aboriginal' in a South African context would lead to a number of contradictions.
The identity of the indigenous groups in South Africa is not self-evident. The adoption of a strict definition, including only communities descended from San and
Khoekhoe
Khoekhoen (singular Khoekhoe) (or Khoikhoi in the former orthography; formerly also '' Hottentots''"Hottentot, n. and adj." ''OED Online'', Oxford University Press, March 2018, www.oed.com/view/Entry/88829. Accessed 13 May 2018. Citing G. S. ...
people, would entail the exclusion of black African communities, an approach deemed detrimental to the spirit of national unity. The legacy of the Natives Land Act also means that few communities retain relationships with the land of which they held before 1913.
Taiwan
File:General_distribution_of_indigenous_people_in_Taiwan.svg, upClickable imagemap of
Taiwan
Taiwan, officially the Republic of China (ROC), is a country in East Asia, at the junction of the East and South China Seas in the northwestern Pacific Ocean, with the People's Republic of China (PRC) to the northwest, Japan to the nort ...
showing traditional territories of indigenous highland peoples. Alternate spellings or names: Pazih (Pazeh); Taroko (Truku, Seediq); Yami (Tao).
circle 427 887 20
Yami people
The Tao people are an Austronesian ethnic group native to the tiny outlying Orchid Island of Taiwan. They have a maritime culture, with great ritual and spiritual significance placed on boat-building and fishing. Their ways of life have been thr ...
Paiwan people
The Paiwan () are an indigenous people of Taiwan. They speak the Paiwan language. In 2014, the Paiwan numbered 96,334. This was approximately 17.8% of Taiwan's total indigenous population, making them the second-largest indigenous group.
The m ...
Rukai people
The Rukai () are one of the indigenous people of Taiwan. They consist of six communities residing in southern Taiwan (Budai, Labuan, Tanan, Maga, Mantauran, and Tona), each of which has its own dialect of the Rukai language. As of the year 2014, ...
poly 262 735 301 733 345 695 322 676 283 690
Puyuma people
The Puyuma (), also known as the Pinuyumayan, Peinan or Beinan, are one of the indigenous groups of the Taiwanese aborigines. The people are generally divided into the Chihpen and Nanwang groups, both resident in Taitung County on the east coast ...
Tsou people
The Tsou ( Tsou: ''Cou''; ) are an indigenous people of central southern Taiwan. They are an Austronesian ethnic group. They reside in Chiayi County and Nantou County.
The Tsou numbered around 6,000, approximately 1.19% of Taiwan's total Indigen ...
Bunun people
The Bunun (), also historically known as the Vonum, are a Taiwanese indigenous people. They speak the Bunun language. Unlike other aboriginal peoples in Taiwan, the Bunun are widely dispersed across the island's central mountain ranges. In the y ...
Amis people
The Amis ( ami, Amis, Ami, Pangcah; ), also known as the Pangcah, are an indigenous Austronesian ethnic group native to Taiwan. They speak the Amis language (; ), an Austronesian language, and are one of the sixteen officially recognized Ta ...
poly 401 458 388 484 388 512 407 487
Kavalan people
The Kavalan (endonym ; "people living in the plain"; ) or Kuvalan are an indigenous people of Taiwan. Most of them moved to the coastal area of Hualien County and Taitung County in the 19th century due to encroachment by Han settlers. Their la ...
poly 236 460 276 453 301 434 283 409 255 420
Thao people
The Thao/Ngan () are a small group of Taiwanese indigenous peoples who have lived near Sun Moon Lake (Lake Candidius) in central Taiwan for at least a century, and probably since the time of the Qing dynasty. The Thao/Ngan people numbered around ...
Atayal people
The Atayal (), also known as the Tayal and the Tayan, are a Taiwanese indigenous people. The Atayal people number around 90,000, approximately 15.9% of Taiwan's total indigenous population, making them the third-largest indigenous group. The pre ...
poly 414 398 440 402 452 378 442 353 429 358
Truku people
The Taroko people (), also known as Truku people, are an Indigenous Taiwanese people. Taroko is also the name of the area of Taiwan where the Taroko reside. The Executive Yuan, Republic of China has officially recognized the Taroko since 15 Janua ...
poly 401 429 416 401 440 402 432 435
Sakizaya people
The Sakizaya (native name: Sakuzaya, literally "real man"; ; occasionally Sakiraya or Sakidaya) are Taiwanese indigenous peoples with a population of approximately 1,000. They primarily live in Hualien (formerly known as ''Kiray''), where their ...
poly 280 265 350 257 348 211 283 237
Saisiyat people
The Saisiyat (; Hakka Pha̍k-fa-sṳ: ''賽夏族(Sòi-hà-tshu̍k)''), also spelled Saisiat, are an indigenous people of Taiwan. In 2000 the Saisiyat numbered 5,311, which was approximately 1.3% of Taiwan's total indigenous population, making t ...
desc bottom-left
Taiwanese indigenous peoples
Taiwanese indigenous peoples (formerly Taiwanese aborigines), also known as Formosan people, Austronesian Taiwanese, Yuanzhumin or Gaoshan people, are the indigenous peoples of Taiwan, with the nationally recognized subgroups numbering about 5 ...
are
Austronesian peoples
The Austronesian peoples, sometimes referred to as Austronesian-speaking peoples, are a large group of peoples in Taiwan, Maritime Southeast Asia, Micronesia, coastal New Guinea, Island Melanesia, Polynesia, and Madagascar that speak Austro ...
, making up a little over 2% of
Taiwan
Taiwan, officially the Republic of China (ROC), is a country in East Asia, at the junction of the East and South China Seas in the northwestern Pacific Ocean, with the People's Republic of China (PRC) to the northwest, Japan to the nort ...
's population; the rest of the population is composed of
ethnic Chinese
The Chinese people or simply Chinese, are people or ethnic groups identified with China, usually through ethnicity, nationality, citizenship, or other affiliation.
Chinese people are known as Zhongguoren () or as Huaren () by speakers of s ...
who colonised the island from the 17th century onward. In 2017 the
Council of Indigenous Peoples
The Council of Indigenous Peoples (CIP; ), formerly known as the Council of Aboriginal Affairs, is a ministry-level body under the Executive Yuan in Taiwan (Republic of China). It was established to serve the needs of the country's indigenous ...
declared , about half of Taiwan's land area (mostly in the east of the island), to be "traditional territory"; about 90 percent is public land that indigenous people can claim, and to whose development they can consent or not; the rest is privately owned.
From 1895 Taiwan was under Japanese rule and indigenous rights to land were extinguished. The Republic of China (ROC) took control of Taiwan from the Japanese Empire in 1945 (the "
retrocession
The act of cession is the assignment of property to another entity. In international law it commonly refers to land transferred by treaty. Ballentine's Law Dictionary defines cession as "a surrender; a giving up; a relinquishment of jurisdicti ...
"), and in 1949 the
Communists
Communism (from Latin la, communis, lit=common, universal, label=none) is a far-left sociopolitical, philosophical, and economic ideology and current within the socialist movement whose goal is the establishment of a communist society, a s ...
won the
Chinese Civil War
The Chinese Civil War was fought between the Kuomintang-led government of the Republic of China and forces of the Chinese Communist Party, continuing intermittently since 1 August 1927 until 7 December 1949 with a Communist victory on m ...
, giving them control of
mainland China
"Mainland China" is a geopolitical term defined as the territory governed by the People's Republic of China (including islands like Hainan or Chongming), excluding dependent territories of the PRC, and other territories within Greater China. ...
; a
rump
Rump may refer to:
* Rump (animal)
** Buttocks
* Rump steak, slightly different cuts of meat in Britain and America
* Rump kernel, software run in userspace that offers kernel functionality in NetBSD
Politics
*Rump cabinet
* Rump legislature
* Ru ...
Republic of China was established on
Taiwan Island
Taiwan, officially the Republic of China (ROC), is an island country located in East Asia. The main island of Taiwan, formerly known in the Western political circles, press and literature as Formosa, makes up 99% of the land area of the territori ...
. From then, indigenous people's access to traditional lands was limited, as the ROC built cities, railroads, national parks, mines and tourist attractions. In 2005 the Basic Law for Indigenous Peoples was passed.
Tanzania
In 1976, the
Barabaig people
The Barabaig are a nomadic tribe of the Datooga people based in the northern volcanic highlands near Mount Hanang in Manyara Region, Tanzania, speaking the eponymous dialect of the Datooga language. Their population is about 50,000.
History
The B ...
challenged their eviction from the Hanang District of the Manyara Region, due to the government's decision to grow wheat in the region, funded by the
Canadian Food Aid Programme
Canadians (french: Canadiens) are people identified with the country of Canada. This connection may be residential, legal, historical or cultural. For most Canadians, many (or all) of these connections exist and are collectively the source of ...
. The wheat program would later become the National Agricultural and Food Corporation (NAFCO). NAFCO would lose a different suit to the Mulbadaw Village Council in 1981, which upheld customary land rights. The Court of Appeal of Tanzania overturned the judgement in 1985, without reversing the doctrine of aboriginal title, holding that the specific claimants had not proved that they were native. The Extinction of Customary Land Right Order 1987, which purported to extinguish Barabaig customary rights, was declared null and void that year.
The Court of Appeal delivered a decision in 1994 that sided with the aboriginal title claimant on nearly all issues, but ultimately ruled against them, holding that the Constitution (Consequential, Transitional and Temporary Provisions) Act, 1984—which rendered the constitutional right to property enforceable in court—was not retroactive. In 1999, the
Maasai Maasai may refer to:
* Maasai people
*Maasai language
* Maasai mythology
* MAASAI (band)
See also
* Masai (disambiguation)
* Massai
Massai (also known as: Masai, Massey, Massi, Mah–sii, Massa, Wasse, Wassil or by the nickname "Big Foot" Mas ...
were awarded monetary compensation and alternative land by the Court of Appeal due to their eviction from the Mkomazi Game Reserve when a foreign investor started a
rhino
A rhinoceros (; ; ), commonly abbreviated to rhino, is a member of any of the five extant species (or numerous extinct species) of odd-toed ungulates in the family Rhinocerotidae. (It can also refer to a member of any of the extinct species o ...
farm. The government has yet to comply with the ruling.
United States
The United States, under the tenure of Chief Justice John Marshall, became the first jurisdiction in the world to judicially acknowledge (in ''
dicta
In general usage, a dictum ( in Latin; plural dicta) is an authoritative or dogmatic statement. In some contexts, such as legal writing and church cantata librettos, ''dictum'' can have a specific meaning.
Legal writing
In United States legal term ...
usufruct
Usufruct () is a limited real right (or ''in rem'' right) found in civil-law and mixed jurisdictions that unites the two property interests of ''usus'' and ''fructus'':
* ''Usus'' (''use'') is the right to use or enjoy a thing possessed, direct ...
, whose content was limited only by "their own discretion", inalienable except to the federal government, and extinguishable only by the federal government. Early state court decisions also presumed the existence of some form of aboriginal title.
Later cases established that aboriginal title could be terminated only by the "clear and plain intention" of the federal government, a test that has been adopted by most other jurisdictions. The federal government was found to owe a
fiduciary duty
A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties (person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, for examp ...
to the holders of aboriginal title, but such duty did not become enforceable until the late-20th century.
Although the property right itself is not created by statute,
sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine whereby a sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution, strictly speaking in modern texts in its own courts. A similar, stronger ...
Indian Claims Commission The Indian Claims Commission was a judicial relations arbiter between the United States federal government and Native American tribes. It was established under the Indian Claims Act of 1946 by the United States Congress to hear any longstanding clai ...
United States Court of Federal Claims
The United States Court of Federal Claims (in case citations, Fed. Cl. or C.F.C.) is a United States federal court that hears monetary claims against the U.S. government. It was established by statute in 1982 as the United States Claims Court, ...
in 1982). These bodies have no authority to title land, only to pay compensation. ''
United States v. Alcea Band of Tillamooks
United may refer to:
Places
* United, Pennsylvania, an unincorporated community
* United, West Virginia, an unincorporated community
Arts and entertainment Films
* ''United'' (2003 film), a Norwegian film
* ''United'' (2011 film), a BBC Two f ...
'' (1946) was the first ever judicial compensation for a taking of Indian lands unrecognized by a specific treaty obligation. '' Tee-Hit-Ton Indians v. United States'' (1955) established that the extinguishment of aboriginal title was not a "
taking
Taking or takings may refer to:
* Theft, illicit taking
* The acquisition of land under eminent domain
* Take (hunting) or taking, an action that adversely affects a species
* Kidnapping of persons
See also
*
*
*
* Take (disambiguation)
* ...
" within the meaning of the Fifth Amendment. On the strength of this precedent, claimants in the Court of Federal Claims have been denied interest—which otherwise would be payable under Fifth Amendment jurisprudence—totalling billions of dollars ($9 billion alone, as estimated by a footnote in ''Tee-Hit-Ton'', in interest for claims then pending based on existing jurisdictional statutes).
Unlike Australia, Canada, and New Zealand, the United States allows aboriginal title to be created post-sovereignty; rather than existing since pre-sovereignty, aboriginal title need only have existed for a "long time" (as little as 30 years) to be compensable.
Jurisdiction rejecting the doctrine
There is no possibility for aboriginal title litigation in some Commonwealth jurisdictions; for instance,
Barbados
Barbados is an island country in the Lesser Antilles of the West Indies, in the Caribbean region of the Americas, and the most easterly of the Caribbean Islands. It occupies an area of and has a population of about 287,000 (2019 estimate) ...
and the Pitcairn Islands were uninhabited for hundreds of years prior to colonization, although they had previously been inhabited by the
Arawak
The Arawak are a group of indigenous peoples of northern South America and of the Caribbean. Specifically, the term "Arawak" has been applied at various times to the Lokono of South America and the Taíno, who historically lived in the Great ...
Unlike most jurisdictions, the doctrine that aboriginal title is
inalienable
''InAlienable'' is a 2007 science fiction film with horror and comic elements, written and executive produced by Walter Koenig, and directed by Robert Dyke. It was the first collaboration of Koenig and Dyke since their 1989 production of ''Moon ...
never took hold in India. Sales of land from indigenous persons to both British subjects and aliens were widely upheld. The
Pratt–Yorke opinion
The Pratt-York opinion also known as the Camden-Yorke opinion was a 1757 official legal opinion issued jointly by Charles Pratt, 1st Earl Camden, the Attorney General for England and Wales, and Charles Yorke, the Solicitor General for England and ...
(1757), a joint opinion of England's Attorney-General and Solicitor-General, declared that land purchases by the
British East India Company
The East India Company (EIC) was an English, and later British, joint-stock company founded in 1600 and dissolved in 1874. It was formed to trade in the Indian Ocean region, initially with the East Indies (the Indian subcontinent and South ...
Crown patent
A crown is a traditional form of head adornment, or hat, worn by monarchs as a symbol of their power and dignity. A crown is often, by extension, a symbol of the monarch's government or items endorsed by it. The word itself is used, partic ...
authorizing the purchase.
In a 1924 appeal from India, the Privy Council issued an opinion that largely corresponded to the Continuity Doctrine: '' Vaje Singji Jorava Ssingji v Secretary of State for India''. This line of reasoning was adopted by the Supreme Court of India in a line of decisions, originating with the proprietary claims of the former rulers of the Princely states, as well as their heirs and assigns.''R.C. Poudyal & Anr. v. Union of India & Ors''
993
Year 993 ( CMXCIII) was a common year starting on Sunday (link will display the full calendar) of the Julian calendar.
Events
By place
Europe
* Spring – The 12-year-old King Otto III gives the Sword of Saints Cosmas and Damian ...
INSC 77.
Adivasi
The Adivasi refers to inhabitants of Indian subcontinent, generally tribal people. The term is a Sanskrit word coined in the 1930s by political activists to give the tribal people an indigenous identity by claiming an indigenous origin. The term ...
land rights litigation has yielded little result. Most Adivasi live in state-owned forests.
Notes
References
Further reading
;Comparative
*Bartlett, Richard H., and Jill Milroy (eds.). 1999. ''Native Title Claims in Canada and Australia: Delgamuukw and Miriuwung Gajerrong''.
*Richard A. Epstein, Property Rights Claims of Indigenous Populations: The View from the Common Law, 31 U. Toledo L. Rev. 1 (1999).
*Hazelhurst, Kayleen M. (ed.). 1995. ''Legal Pluralism and the Colonial Legacy''.
*Hocking, Barbara Ann. 2005. ''Unfinished constitutional business?: rethinking indigenous self-determination''.
*IWGIA. 1993. ''"...Never Drink from the Same Cup": Proceedings of the conference on indigenous peoples in Africa.''
*IWGIA. 2007. ''The Indigenous World''.
*Liversage, Vincent. 1945. ''Land Tenure in the Colonies''. pp. 2–18, 45—53
*Meek, C.K. 1946. ''Land Law and Custom in the Colonies''.
*McHugh, PG. 2011. ''Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights'' (Oxford: OUP, 2011)
*McNeil, Kent. 1989. ''Common Law Aboriginal Title''. Oxford University Press.
*McNeil, Kent. 2001. ''Emerging Justice? essays on indigenous rights in Canada and Australia''.
*Robertson, Lindsay G. 2005. ''Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands''. Oxford University Press. .
*Slattery, Brian. 1983. ''Ancestral lands, alien laws: judicial perspectives on aboriginal title''.
*Young, Simon. 2008. ''Trouble with tradition: native title and cultural change''. Sydney: Federation Press.
*Blake A. Watson, ''The Impact of the American Doctrine of Discovery on Native Land Rights in Australia, Canada, and New Zealand'', 34 507 (2011).
;Australia
*Bartlett, R. 2004 (2d ed.). ''Native Title in Australia''.
*Brockwell, Sally. 1979. ''Aborigines and the law: a bibliography''.
*Law Reform Commission. 1986. ''The recognition of Aboriginal customary laws''. Report No. 31. Parliamentary Paper No. 136/1986.
*McCorquodale, John. 1987. ''Aborigines and the law: a digest''.
*Reynolds, Henry. M.A. Stephenson & Suri Ratnapala (eds.). 1993. ''Native Title and Pastoral Leases, in Mabo: A Judicial Revolution—The Aboriginal Land Rights Decision and Its Impact on Australian Law''.
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;Bangladesh
*IWGIA. 2000. ''Land Rights of the Indigenous Peoples of the Chittagong Hill Tracts, Bangladesh''.
;Belize
*Grandi, Liza. 2006. ''Unsettling: land dispossession and the Guatemalan and Belizean frontier colonization process''.
;Canada
*Borrows, John. 2002. ''Recovering Canada: the resurgence of Indigenous law''.
*Clark, Bruce A. 1990. ''Native Liberty, Crown Sovereignty''.
*Foster, Hamar, Heather Raven & Jeremy Webber. 2007. ''Let Right Be Done: Aboriginal title, the Calder case, and the future of indigenous rights''.
;Ghana
*Ollennu, N.A. 1962. ''Customary Land Law in Ghana''.
;Guyana
*Bennett, Gordon & Audrey Colson. 1978. ''The damned: the plight of the Akawaio Indians of Guyana''.
;Hong Kong
*Nissim, Roger. 2008 (2d ed.). ''Land administration and practice in Hong Kong''.
;Kenya
*Mackenzie, Fiona. 1998. ''Land, ecology, and resistance in Kenya, 1880–1952''.
*Odhiambo, Atieno. 1981. ''Siasa: politics and nationalism in E.A.''.
;Malaysia
*Ramy Bulan. "Native Title as a Proprietary Right under the Constitution in Peninsula Malaysia: A Step in the Right Direction?" 9 ''Asia Pacific Law Review'' 83 (2001).
*Bulan, Ramy. "Native Title in Malaysia: A 'Complementary' Sui Generis Right Protected by the Federal Constitution", 11(1) ''Australian Indigenous Law Review'' 54 (2007).
*Gray, S. "Skeletal Principles in Malaysia's Common Law Cupboard: the Future of Indigenous Native Title in Malaysian Common Law" ''Lawasia Journal'' 99 (2002).
*Porter, A.F. 1967. ''Land administration in Sarawak''.
;Namibia
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;New Zealand
*Boast, Richard, Andrew Erueti, Doug McPhail & Norman F. Smith. 1999. ''Maori Land Law''.
*Brookfield, F.M. 1999. ''Waitangi & Indigenous Rights''.
*Erueti, A. "Translating Maori Customary Title into Common Law Title." ''New Zealand Law Journal'' 421–423 (2003).
*Gilling, Bryan D. "By whose Custom? The Operation of the Native Land Court in the Chatham Islands." 23(3) ''Victoria University of Wellington Law Review'' (1993).
*Gilling, Bryan D. "Engine of Destruction? An Introduction to the History of the Maori Land Court." ''Victoria U. Wellington L. Rev.'' (1994).
*Hill, R. "Politicising the past: Indigenous scholarship and crown—Maori reparations processes in New Zealand." 16 Social and Legal Studies 163 (2007).
*Leane, G. "Fighting them on the Benches: the Struggle for Native Title Recognition in New Zealand." 8(1) ''Newcastle Law Review'' 65 (2004).
*Mikaere, Ani and Milroy, Stephanie. "Treaty of Waitangi and Maori Land Law", ''NZ Law Review'' 363 (2000).
*McHugh, Paul G. 1983. ''Maori land laws of New Zealand: two essays''.
*McHugh, Paul G. 1984. "Aboriginal title in New Zealand courts", 2 University of Canterbury Law Review 235–265.
*McHugh, Paul G. 1991. ''The Maori Magna Carta''..
*Williams, David V. 1999. ''"Te Kooti tango whenua": the Native Land Court 1864–1909''.
;Papua New Guinea
*Mugambwa, J.T. 2002. ''Land law and policy in Papua New Guinea''.
*Sack, Peter G. 1973. ''Land Between Two Laws: Early European land acquisitions in New Guinea''.
;South Africa
*Claasens, Aninka & Ben Cousins. 2008. ''Land, power, and custom: Controversies generated by South Africa's Communal Land Rights Act''.
;Tanzania
*Japhet, Kirilo. 1967. ''The Meru Land Case''.
*Peter, Chris Maina. 1997. ''Human Rights in Tanzania: Selected Cases and Materials''. pp. 214–269.
*Peter, Chris Maina, and Helen Kijo-Bisimba. 2007. ''Law and Justice in Tanzania: Quarter a Century of the Court of Appeal''.
*Shivji, Issa G. 1990. ''State Coercion and Freedom in Tanzania''. Human & People's Rights Monograph Series No. 8, Institute of Southern African Studies.
*Tenga, Ringo Willy. 1992. ''Pastoral Land Rights in Tanzania''.
*Widner, Jennifer A. 2001. ''Building the rule of law''.
;Zambia
*Mvunga, Mphanza P. 1982. ''Land Law and Policy in Zambia''.