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Aboriginal title

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Protests of the Foreshore and Seabed Act 2004, extinguishing aboriginal title to the foreshore and seabeds

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, 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, except to The Crown, and that it may be held either individually or collectively.

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, Malaysia, New Zealand, and the United States. Aboriginal title is an important area of comparative 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, 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 the law of nations, it has been codified nationally by legislation, treaties, and constitutions.

References

Comparative
  • Bartlett, Richard H., and Jill Milroy (eds.). 1999. Native Title Claims in Canada and Australia: Delgamuukw and Miriuwung Gajerrong.
  • Hocking, Barbara Ann. 2005. Unfinished constitutional business?: rethinking indigenous self-determination.
  • IWGIA. 2007. The Indigenous World.
  • 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. ISBN 019514869X.
  • 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.
Australia
  • Bartlett, R. 2004 (2d ed.). Native Title in Australia.
  • 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.
  • Strelein, L. 2009 (2d ed.). Compromised Jurisprudence: Native Title Cases Since Mabo. Aboriginal Studies Press, Canberra.
Bangaldesh
  • 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.
Guyana
  • Bennett, Gordon & Audrey Colson. 1978. The damned: the plight of the Akawaio Indians of Guyana.
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

Legal Assistance Center. 2006. “Our land they took”: San land rights under threat in Namibia.

New Zealand
  • 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.
Papua New Guinea
  • Mugambwa, J.T. 2002. Land law and policy in Papua New Guinea.
South Africa
  • Claasens, Aninka & Ben Cousins. 2008. Land, power, and custom: Controversies generated by South Africa’s Communal Land Rights Act.
Tanzania
  • 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.
  • Widner, Jennifer A. 2001. Building the rule of law.
Zambia
  • Mvunga, Mphanza P. 1982. Land Law and Policy in Zambia.

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