Aboriginal title
Encyclopedia
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
doctrine that the land rights
Indigenous land rights
Indigenous land rights are hangtime the rights of indigenous peoples to land, either individually or collectively. Land and resource-related rights are of fundamental importance to indigenous peoples for a range of reasons, including: the religious significance of the land, self-determination,...
of indigenous peoples
Indigenous peoples
Indigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....
to customary tenure
Customary land
Customary land is land which is owned by Indigenous communities and administered in accordance with their customs, as opposed to statutory tenure usually introduced during the colonial periods. Common ownership is one form of customary land ownership....
persist after the assumption of sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
under settler colonialism
Settler colonialism
Settler colonialism is a specific colonial formation whereby foreign family units move into a region and reproduce. Land is thus the key resource in settler colonies, whereas natural and human resources are the main motivation behind other forms of colonialism...
. 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
Alienation (property law)
Alienation, in property law, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Although property is generally deemed to be alienable, it may be subject to restraints on alienation....
, except to the national government, and that it may be held either individually or collectively
Individual and group rights
Group rights are rights held by a group rather than by its members separately, or rights held only by individuals within the specified group; in contrast, individual rights are rights held by individual people regardless of their group membership or lack thereof...
.
Aboriginal title was first acknowledged in the early 19th century, in decisions in which indigenous peoples 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
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, Malaysia, New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
, and the United States
Aboriginal title in the United States
The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title...
. Aboriginal title is an important area of comparative law
Comparative law
Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal systems in existence in the world, including the common law, the civil law, socialist law, Islamic law, Hindu law, and Chinese law...
, with many cases being cited as persuasive authority across jurisdictions. Many commentators believe that the doctrine is applicable in all common law legal systems.
Aboriginal title is also referred to as indigenous title, native title (particularly in Australia), original Indian title (particularly in the United States), and customary title (particularly in New Zealand). Aboriginal title jurisprudence is related to indigenous rights
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 preservation of their land, language, religion and other elements of cultural...
, influencing and influenced by non-land issues, such as whether the government owes a fiduciary duty to indigenous peoples. While the judge-made doctrine arises from customary international law
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
, it has been codified nationally by legislation, treaties, and constitutions.
English colonial legacy
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
: the Act of State doctrine, Doctrine of Continuity, and the Recognition Doctrine. The Act of State doctrine held that The Crown could confiscate or extinguish real or personal property rights 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
Private property
Private property is the right of persons and firms to obtain, own, control, employ, dispose of, and bequeath land, capital, and other forms of property. Private property is distinguishable from public property, which refers to assets owned by a state, community or government rather than by...
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 the same year in which the Doctrine of Continuity emerged, Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
delivered a famous dicta in Calvin’s Case (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 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 (1957).
The first Indigenous land rights case under the common law, Mohegan Indians v. Connecticut
Mohegan Indians v. Connecticut
Mohegan Indians v. Connecticut was the first indigenous land rights litigation in history in a common law jurisdiction. Prof. James Youngblood Henderson calls the case "the first major legal test of indigenous tenure." Prof...
, 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 re,. 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). 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." Just 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. Modern decisions have heaped criticism upon the views expressed in Southern Rhodesia.
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 sovereigntySovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
, and continuity to the present day.
Content
Aboriginal title does not constitute allodial titleAllodial title
Allodial title constitutes ownership of real property that is independent of any superior landlord, but it should not be confused with anarchy as the owner of allodial land is not independent of his sovereign...
or radical title in any jurisdiction. Instead, its content is generally described as a usufruct
Usufruct
Usufruct is the legal right to use and derive profit or benefit from property that either belongs to another person or which is under common ownership, as long as the property is not damaged or destroyed...
, 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 approximate fee simple
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
.
It is common ground among the relevant jurisdictions that aboriginal title is inalienable
InAlienable
InAlienable is a 2008 science fiction horror film written and produced by Walter Koenig, and directed by Robert Dyke.-Plot:Dr. Eric Norris remains wracked with guilt after a terrible tragedy that cost him his family, and when he learns that an alien parasite is not only growing inside him but...
, except to the federal government ("The Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
"), 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 CrownThe Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
, 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
Right to property
The right to property, also known as the right to protection of property, is a human right and is understood to establish an entitlement to private property...
, as protected by constitutional or common law, and the breach of a fiduciary duty.
Australia
AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
did not experience native title litigation until the 1970s, when Indigenous Australians
Indigenous Australians
Indigenous Australians are the original inhabitants of the Australian continent and nearby islands. The Aboriginal Indigenous Australians migrated from the Indian continent around 75,000 to 100,000 years ago....
(both Australian Aborigines
Australian Aborigines
Australian Aborigines , also called Aboriginal Australians, from the latin ab originem , are people who are indigenous to most of the Australian continentthat is, to mainland Australia and the island of Tasmania...
and Torres Strait Islanders
Torres Strait Islanders
Torres Strait Islanders are the indigenous people of the Torres Strait Islands, part of Queensland, Australia. They are culturally and genetically linked to Melanesian peoples and those of Papua New Guinea....
) became more politically active.Several earlier cases tangentially involved issues of native title: Attorney-General v Brown (1847) 1 Legge 312; 2 SCR (NSW) App 30; Cooper v Stuart (1889) 14 App Cas 286; Williams v Attorney General (NSW) (1913) 16 CLR 404; Randwick Corporation v. Rutledge (1959) 102 CLR 54; Wade v. New South Wales Rutile Mining Co. Pty. Ltd. (1969) 121 CLR 177. In 1971, Blackburn J.
Richard Blackburn
Sir Richard Arthur Blackburn OBE was a judge, prominent legal academic and former military officer in Australia. He became a judge of three separate courts in Australia, and eventually became chief justice of the Australian Capital Territory. In the 1970s he decided one of Australia's earliest...
of the Supreme Court of the Northern Territory
Supreme Court of the Northern Territory
The Supreme Court of the Northern Territory is the superior court for the Australian Territory of the Northern Territory. It has unlimited jurisdiction within the territory in civil matters, and hears the most serious criminal matters...
rejected the concept in Milirrpum v Nabalco Pty Ltd (the "Gove land rights case"). The Aboriginal Land Rights Commission was established in 1973 in the wake of Milirrpum. Paul Coe
Paul Coe
Paul Coe ', a Wiradjuri man, is an Australian Aboriginal activist. He was the son of Leslie Coe, and the grandson of Paul Joseph Coe and Edith Murray and the great grandson of Thomas Coe and Jessie Mary, née Waggerah ....
, in Coe v Commonwealth (1979), attempted (unsuccessfully) to bring a class action
Class action
In law, a class action, a class suit, or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued...
on behalf of all Aborigines claiming all of Australia. The Aboriginal Land Rights Act 1976
Aboriginal Land Rights Act 1976
In Australian history, the Aboriginal Land Rights Act established the basis upon which Aboriginal people in the Northern Territory could claim rights to land based on traditional occupation. The Act was strongly based on the recommendations of Justice Woodward, who chaired the Aboriginal Land...
, by statute, established a procedure that returned approximately 40% of the Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
to Aboriginal ownership; the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 had a similar effect in South Australia
South Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
.
The High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
, after paving the way by striking down a State statute under the Racial Discrimination Act 1975
Racial Discrimination Act 1975
The Racial Discrimination Act 1975 is a statute passed by the Australian Parliament during the Prime Ministership of Labor Gough Whitlam....
, overruled Milirrpum in Mabo v Queensland (No 2) (1992). Mabo, rejecting terra nullius
Terra nullius
Terra nullius is a Latin expression deriving from Roman law meaning "land belonging to no one" , which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished...
, 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
Native Title Act 1993
The Native Title Act of 1993 provides for determinations of native title in Australia. The Act was passed by the Keating Labor Government in response to the High Court's decision in Mabo v Queensland...
(NTA), codifying the doctrine and establishing the National Native Title Tribunal
National Native Title Tribunal
The National Native Title Tribunal is an independent body that assists people to reach timely and effective outcomes for disputes about native title in Australia....
(NNTT). Western Australia v Commonwealth (1995) upheld the NTA and struck down a conflicting Western Australia statute.
In 1996, the High Court held that pastoral lease
Pastoral lease
A pastoral lease is Crown land that government allows to be leased, generally for the purposes of farming.-Australia:Pastoral leases exist in both Australian commonwealth law and state jurisdictions....
s, which cover nearly half of Australia, do not extinguish native title in Wik Peoples v Queensland
Wik Peoples v Queensland
Wik Peoples v The State of Queensland 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 statutory pastoral leases under consideration by the court did not bestow rights of exclusive...
. In response, Parliament passed the Native Title Amendment Act 1998
Native Title Amendment Act 1998
The Native Title Amendment Act 1998 , also commonly referred to as the "10 Point Plan" is an Australian law created by the John Howard led Liberal government in response to the 1996 Wik Decision by the High Court of Australia...
(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
Bundle of Rights
The bundle of rights is a common way to explain the complexities of property ownership. Teachers often use this concept as a way to organize confusing and sometimes contradictory data about real estate....
, which may be extinguished one by one, for example, by a mining lease. Yorta Yorta v Victoria
Yorta Yorta v Victoria
Yorta Yorta v Victoria was a native title claim by the Yorta Yorta indigenous people of north central Victoria, Australia which was dismissed by Justice Olney of the Federal Court of Australia in 1998...
(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
In A.-G. for British Honduras v. Bristowe (1880), the Privy Council held that the property rights of British subjects who had been living in BelizeBelize
Belize is a constitutional monarchy and the northernmost country in Central America. Belize has a diverse society, comprising many cultures and languages. Even though Kriol and Spanish are spoken among the population, Belize is the only country in Central America where English is the official...
under Spanish rule with limited property rights, were enforceable against the Crown, and had been upgraded to fee simple
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
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. The Maya peoples
Maya peoples
The Maya people constitute a diverse range of the Native American people of southern Mexico and northern Central America. The overarching term "Maya" is a collective designation to include the peoples of the region who share some degree of cultural and linguistic heritage; however, the term...
of the Toledo District
Toledo District
Toledo District is the southernmost district in Belize, and Punta Gorda the District capital. Although the least developed region in the country, it features some of the most pristine rainforests, extensive cave networks, coastal lowland plains, and offshore cays...
filed a complaint with the Inter-American Commission on Human Rights
Inter-American Commission on Human Rights
The Inter-American Commission on Human Rights is an autonomous organ of the Organization of American States .Along with the...
, 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
Abdulai Conteh
Dr Abdulai Osman Conteh is a lawyer and politician from Sierra Leone.-Early life and education:Dr. Conteh graduated with LLB from King's College London where he won the Harold Porter Prize for Land Law in 1968, and subsequently continued his education at King's College, Cambridge...
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 alcades, filed a representative action on behalf of all the Maya communities of the Toledo District, and on June 28, 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.
Botswana
A BotswanaBotswana
Botswana, officially the Republic of Botswana , is a landlocked country located in Southern Africa. The citizens are referred to as "Batswana" . Formerly the British protectorate of Bechuanaland, Botswana adopted its new name after becoming independent within the Commonwealth on 30 September 1966...
High Court recognized aboriginal title in Sesana and Others v Attorney General (2006), a case brought by named plaintiff Roy Sesana
Roy Sesana
Roy Sesana is a Bushman activist who works 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...
, which held that the San
Bushmen
The indigenous people of Southern Africa, whose territory spans most areas of South Africa, Zimbabwe, Lesotho, Mozambique, Swaziland, Botswana, Namibia, and Angola, are variously referred to as Bushmen, San, Sho, Barwa, Kung, or Khwe...
have the right to reside in the Central Kalahari Game Reserve
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 52,800 km² making it the second largest game reserve in the world.The park contains wildlife such as giraffe, brown hyena, warthog, cheetah, wild dog,...
(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
Time immemorial is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record"...
. 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 existed in CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
since the Privy Council, in St. Catherines Milling v. The Queen
St. Catherines Milling v. The Queen
St. Catherine's Milling and Lumber Co. v. The Queen 14 App. Cas. 46 was the leading case on aboriginal title in Canada for more than 80 years...
(1888), characterized it as a personal usufruct
Usufruct
Usufruct is the legal right to use and derive profit or benefit from property that either belongs to another person or which is under common ownership, as long as the property is not damaged or destroyed...
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. Catherines was decided in the wake of the Indian Act
Indian Act
The Indian Act , R.S., 1951, c. I-5, is a Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves...
(1876), which laid out an assimilationist policy towards the aboriginal peoples in Canada
Aboriginal peoples in Canada
Aboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....
(First Nations
First Nations
First Nations is a term that collectively refers to various Aboriginal peoples in Canada who are neither Inuit nor Métis. There are currently over 630 recognised First Nations governments or bands spread across Canada, roughly half of which are in the provinces of Ontario and British Columbia. The...
, Inuit
Inuit
The Inuit are a group of culturally similar indigenous peoples inhabiting the Arctic regions of Canada , Denmark , Russia and the United States . Inuit means “the people” in the Inuktitut language...
, and Métis
Métis people (Canada)
The Métis are one of the Aboriginal peoples in Canada who trace their descent to mixed First Nations parentage. The term was historically a catch-all describing the offspring of any such union, but within generations the culture syncretised into what is today a distinct aboriginal group, with...
), allowed provinces to abrogate treaties (until 1951), and made it a federal crime to prosecute First Nation claims in court, raise money, or organize to pursue such claims.
St. Catherines was more or less the prevailing law until Calder v. British Columbia (Attorney General)
Calder v. British Columbia (Attorney General)
Calder v. British Columbia [1973] S.C.R. 313, [1973] 4 W.W.R. 1 was a decision by the Supreme Court of Canada. It was the first time that Canadian law acknowledged that aboriginal title to land existed prior to the colonization of the continent and was not merely derived from statutory law.In...
(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
Royal Proclamation of 1763
The Royal Proclamation of 1763 was issued October 7, 1763, by King George III following Great Britain's acquisition of French territory in North America after the end of the French and Indian War/Seven Years' War...
. Six of the judges split 3-3 on the question of whether aboriginal title had been extinguished. The Nisga'a
Nisga'a
The Nisga’a , often formerly spelled Nishga and spelled in the Nisga’a language as Nisga’a, are an Indigenous nation or First Nation in Canada. They live in the Nass River valley of northwestern British Columbia. Their name comes from a combination of two Nisga’a words: Nisk’-"top lip" and...
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. Essentially, the Nisga'a lost because, before commencing the action, they did not receive permission from the provincial government to sue the government.
Section 91(24) of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
("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
Section Thirty-five of the Constitution Act, 1982
Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...
explicitly recognized and preserved aboriginal rights. R. v. Guerin
R. v. Guerin
Guerin v. The Queen [1984] 2 S.C.R. 335 was a landmark Supreme Court of Canada decision on aboriginal rights where the Court first stated that the government has a fiduciary duty towards the First Nations of Canada and established aboriginal title to be a sui generis right.-Background:The Musqueam...
(1982), the first Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision handed down after the Constitution Act 1982, declared that aboriginal title was sui generis
Sui generis
Sui generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept....
and that the federal government has a fiduciary duty to preserve it. R. v. Simon (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
Numbered Treaties
The numbered treaties are a series of eleven treaties signed between the aboriginal peoples in Canada and the reigning Monarch of Canada from 1871 to 1921. It was the Government of Canada who created the policy, commissioned the Treaty Commissioners and ratified the agreements...
were void. A variety of non-land rights cases, anchored on the Constitution Act 1982, have also been influential.
Delgamuukw v. British Columbia
Delgamuukw v. British Columbia
Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, also known as Delgamuukw vs. the Queen is a famous leading decision of the Supreme Court of Canada where the Court made its most definitive statement on the nature of aboriginal title in Canada....
(1997) laid down the essentials of the current test to prove aboriginal title: "in order to make out a claim for aboriginal title, the aboriginal 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.
Malaysia
Malaysia recognized various statutory rights related to native customary laws ("adatAdat
Adat in Indonesian-Malay culture is the set of cultural norms, values, customs and practices found among specific ethnic groups in Indonesia, the southern Philippines and Malaysia...
") 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
InAlienable is a 2008 science fiction horror film written and produced by Walter Koenig, and directed by Robert Dyke.-Plot:Dr. Eric Norris remains wracked with guilt after a terrible tragedy that cost him his family, and when he learns that an alien parasite is not only growing inside him but...
. 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
Orang Asli
Orang Asli , is a generic Malaysian term used for people indigenous to Peninsular Malaysia...
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
Federal Court of Malaysia
The Federal Court of Malaysia is the highest court and the final appellate court in Malaysia. It is housed in the Palace of Justice in Putrajaya...
wrote an opinion endorsing common law aboriginal title for the first time in Superintendent of Lands v. Madeli bin Salleh. 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
Consideration
Consideration is the central concept in the common law of contracts and is required, in most cases, for a contract to be enforceable. Consideration is the price one pays for another's promise. It can take a number of forms: money, property, a promise, the doing of an act, or even refraining from...
between members of the same community, as long as such transfers are not contrary to customary law.
New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
was the second jurisdiction in the world to recognize aboriginal title, but a slew of extinguishing legislation (beginning with the New Zealand land confiscations
New Zealand land confiscations
The New Zealand land confiscations took place during the 1860s to punish the Kingitanga movement for attempting to set up an alternative, Māori, form of government that forbade the selling of land. The confiscation law targeted Kingitanga Māori against whom the government had waged war to restore...
) has left the Māori with little to claim except for river beds, lake beds, and (until 2004) the foreshore and seabed
New Zealand foreshore and seabed controversy
The New Zealand foreshore and seabed controversy is a debate in the politics of New Zealand. It concerns the ownership of the country's foreshore and seabed, with many Māori groups claiming that Māori have a rightful claim to title. These claims are based around historical possession and the Treaty...
. 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. The decision was based on common law and the Treaty of Waitangi
Treaty of Waitangi
The Treaty of Waitangi is a treaty first signed on 6 February 1840 by representatives of the British Crown and various Māori chiefs from the North Island of New Zealand....
(1840). Chapman J
Henry Samuel Chapman
Henry Samuel Chapman was an Australian and New Zealand judge, colonial secretary, attorney-general, journalist and politician.-Early life:...
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 Maori Lands Act 1862 and the Native Rights Act 1865 which established the Native Land Court (today the Māori Land Court
Maori Land Court
The Māori Land Court is the specialist court in New Zealand that hears matters relating to Māori land.The Māori Land Court was established in 1865 as the Native Land Court. In 1954, the name was changed to the Māori Land Court...
) to hear aboriginal title claims, and—if proven—convert them into freehold interests that could be sold to Pākehā
Pakeha
Pākehā is a Māori language word for New Zealanders who are "of European descent". They are mostly descended from British and to a lesser extent Irish settlers of the nineteenth and twentieth centuries, although some Pākehā have Dutch, Scandinavian, German, Yugoslav or other ancestry...
. That court created the "1840 rule," which converted Māori interests into fee simple
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
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
Wi Parata v the Bishop of Wellington
Wi Parata v the Bishop of Wellington was a New Zealand court case of 1877 which ruled that the Treaty of Waitangi was a "simple nullity" having been signed by "primitive barbarians"....
(1877). Wi Parata undid Symonds, advocating the doctrine of terra nullius
Terra nullius
Terra nullius is a Latin expression deriving from Roman law meaning "land belonging to no one" , which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished...
and declaring the Treaty of Waiting 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.
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 established a 12 year statute of limitations
Statute of limitations
A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...
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 created the Waitangi Tribunal
Waitangi Tribunal
The Waitangi Tribunal is a New Zealand permanent commission of inquiry established under the Treaty of Waitangi Act 1975...
to issue non-binding decisions, concerning alleged breaches of the Treaty, and facilitate settlements
Treaty of Waitangi claims and settlements
Treaty of Waitangi claims and settlements have been a significant feature of New Zealand race relations and politics since 1975. Over the last 30 years, New Zealand governments have increasingly provided formal legal and political opportunity for Māori to seek redress for breaches by the Crown of...
.
Te Weehi v Regional Fisheries Office (1986) was the first case to restore an aboriginal title claim in a New Zealand court since Wi Parata, granting non-exclusive customary fishing rights. Subsequent cases began 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 held that the government owed a fiduciary duty toward the Māori. This cleared the way for a variety of non-land Māori customary rights.
Circa the Te Ture Whenua Māori Act 1993, 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
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
jurisdiction, is the exclusive forum for aboriginal title claims. In 2003, Attorney-General v Ngati Apa overruled In re Ninety Mile Beach and Wi Parata, declaring that Māori could bring claims to the foreshore in Land Court. The Foreshore and Seabed Act 2004
Foreshore and Seabed Act 2004
The Foreshore and Seabed Act 2004 is Act of the Parliament of New Zealand. It arose out of, and further fueled, the New Zealand foreshore and seabed controversy.It was replaced by the Marine and Coastal Area Bill.-External links:*...
extinguished those rights before any lower court could hear a claim. That legislation has been condemned by the Committee on the Elimination of Racial Discrimination. The 2004 Act was overturned in 2011 with the formation of the Marine and Coastal Area (Takutai Moana) Bill.
The Foreshore and Seabed Act 2004 has now been repealed under the Marine and Coastal Area (Takutai Moana) Act 2011.
Papua New Guinea
The High Court of AustraliaHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
, which had appellate jurisdiction before 1975, recognized aboriginal title in Papua New Guinea
Papua New Guinea
Papua New Guinea , officially the Independent State of Papua New Guinea, is a country in Oceania, occupying the eastern half of the island of New Guinea and numerous offshore islands...
—decades before it did so in Australia—in Geita Sebea v Territory of Papua (1941), Administration of Papua and New Guinea v Daera Guba (1973) (the "Newtown case"), and other cases. The Supreme Court of Papua New Guinea
Supreme Court of Papua New Guinea
The Supreme Court of Papua New Guinea has been the highest court of Papua New Guinea since 16 September 1975, replacing the pre-Independence Supreme Court and the overseas appellate tribunals from 1902 to 1975 of the High Court of Australia and the Judicial Committee of the Privy Council...
followed suit.
Schedule 2 of the Constitution of Papua New Guinea recognizes customary land tenure, and 97% of the land in the country remains unalienated.
South Africa
Constitutional Court of South Africa
The Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February...
of South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
recognized aboriginal title in Alexkor v Richtersveld Community
Alexkor v Richtersveld Community
Alexkor v Richtersveld Community, decided by the Constitutional Court in 2001, is an important case in South African law, with a particular bearing on the law of property and the use of customary law....
(2003), a suit under the Restitution of Land Rights Act 1994. The Land Claims Court had dismissed the complaint of the Richtersveld
Richtersveld
The Richtersveld is a mountainous desert landscape characterised by rugged kloofs and high mountains, situated in South Africa’s Northern Cape province. It is full of changing scenery from flat sandy plains, to craggy sharp mountains of volcanic rock and the lushness of the Orange River, which...
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.
Tanzania
In 1976, the Barabaig people 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. 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 were awarded monetary compensation and alternative land by the Court of Appeal due to their eviction from the Mkomazi Game Reserve
Mkomazi Game Reserve
Mkomazi Game Reserve is located in North Eastern Tanzania on the Kenyan Border. It was established in 1951 and is found in Kilimanjaro Region and Tanga Region...
when a foreign investor started a rhino
Rhinoceros
Rhinoceros , also known as rhino, is a group of five extant species of odd-toed ungulates in the family Rhinocerotidae. Two of these species are native to Africa and three to southern Asia....
farm. The government has yet to comply with the ruling.
United States
The United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, under the tenure of Chief Justice John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
, became the first jurisdiction in the world to judicially acknowledge (in dicta) the existence of aboriginal title in series of key decisions
Aboriginal title in the Marshall Court
The Supreme Court of the United States, under Chief Justice John Marshall , issued some of the earliest and most influential opinions on the status of aboriginal title in the United States, several of them written by Chief Justice John Marshall himself. However, without exception, the remarks of...
. Marshall envisioned a usufruct
Usufruct
Usufruct is the legal right to use and derive profit or benefit from property that either belongs to another person or which is under common ownership, as long as the property is not damaged or destroyed...
, 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 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 in the United States
Sovereign immunity in the United States is the legal privilege by which the American federal, state, and tribal governments cannot be sued. Local governments in most jurisdictions enjoy immunity from some forms of suit, particularly in tort...
barred the enforcement of aboriginal title until the passage of the Indian Claims Commission Act of 1946, which created the Indian Claims Commission
Indian claims commission
The Indian Claims Commission was a judicial panel for relations between the United States Federal Government and Native American tribes. It was established in 1946 by the United States Congress to hear claims of Indian tribes against the United States...
(succeeded by the United States Court of Claims
United States Court of Claims
The Court of Claims was a federal court that heard claims against the United States government. It was established in 1855 as the Court of Claims, renamed in 1948 to the United States Court of Claims , and abolished in 1982....
in 1978, and later the United States Court of Federal Claims
United States Court of Federal Claims
The United States Court of Federal Claims is a United States federal court that hears monetary claims against the U.S. government. The court is established pursuant to Congress's authority under Article One of the United States Constitution...
in 1982). These bodies have no authority to title land, only to pay compensation. United States v. Alcea Band of Tillamooks (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
Tee-Hit-Ton Indians v. United States
Tee-Hit-Ton Indians v. United States, 348 U.S. 272 is a United States Supreme Court case involving a suit by the Tee-Hit-Ton, a subgroup of the Tlingit people. The Tee-Hit-Ton sought compensation for lumber taken from lands they occupied from Congress...
(1955) established that the extinguishment of aboriginal title was not a "taking" within the meaning of the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
. 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.
Jurisdictions rejecting the doctrine
Commonwealth
Commonwealth is a traditional English term for a political community founded for the common good. Historically, it has sometimes been synonymous with "republic."More recently it has been used for fraternal associations of some sovereign nations...
jurisdictions; Barbados
Barbados
Barbados is an island country in the Lesser Antilles. It is in length and as much as in width, amounting to . It is situated in the western area of the North Atlantic and 100 kilometres east of the Windward Islands and the Caribbean Sea; therein, it is about east of the islands of Saint...
and Pitcairn Islands
Pitcairn Islands
The Pitcairn Islands , officially named the Pitcairn, Henderson, Ducie and Oeno Islands, form a group of four volcanic islands in the southern Pacific Ocean. The islands are a British Overseas Territory and overseas territory of the European Union in the Pacific...
were uninhabited for hundreds of years prior to colonization, although they had previously been inhabited by Arawaks and Caribs, and Polynesians
Polynesians
The Polynesian peoples is a grouping of various ethnic groups that speak Polynesian languages, a branch of the Oceanic languages within the Austronesian languages, and inhabit Polynesia. They number approximately 1,500,000 people...
, respectively.
India
Unlike most jurisdictions, the doctrine that aboriginal title is inalienableInAlienable
InAlienable is a 2008 science fiction horror film written and produced by Walter Koenig, and directed by Robert Dyke.-Plot:Dr. Eric Norris remains wracked with guilt after a terrible tragedy that cost him his family, and when he learns that an alien parasite is not only growing inside him but...
never took hold in India, and sales from indigenous persons to both British subjects and aliens were widely upheld. The Pratt-Yorke opinion
Pratt-Yorke opinion
The Pratt-York 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 Wales , regarding the legality of land purchases by the British East India Company from...
(1757), a joint opinion of England's Attorney-General and Solicitor-General, declared that land purchases by the British East India Company
British East India Company
The East India Company was an early English joint-stock company that was formed initially for pursuing trade with the East Indies, but that ended up trading mainly with the Indian subcontinent and China...
from the Princely state
Princely state
A Princely State was a nominally sovereign entitity of British rule in India that was not directly governed by the British, but rather by an Indian ruler under a form of indirect rule such as suzerainty or paramountcy.-British relationship with the Princely States:India under the British Raj ...
s were valid even without a crown patent 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
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution 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. Adivasi
Adivasi
Adivasi is an umbrella term for a heterogeneous set of ethnic and tribal groups claimed to be the aboriginal population of India. They comprise a substantial indigenous minority of the population of India...
land rights litigation has yielded little effect, and most Adivasi live in state-owned forests.