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Aboriginal title is a
common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of
sovereignty Sovereignty can generally be defined as supreme authority. Sovereignty entails hierarchy within a state as well as external autonomy for states. In any state, sovereignty is assigned to the person, body or institution that has the ultimate au ...
to that land by another colonising state. 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 or inalienability may refer to: *Inalienable right, a type of legal right in jurisprudence **Restraint on alienation *Inalienable possession, a class of nouns in linguistics *Inalienable possessions Inalienable possessions (or imm ...
, 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, 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 (legal person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, fo ...
to indigenous peoples. While the judge-made doctrine arises from
customary international law Customary international law consists of international legal obligations arising from established or usual international practices, which are less formal customary expectations of behavior often unwritten as opposed to formal written treaties or c ...
, 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 There is no generally accepted definition of Indigenous peoples, although in the 21st century the focus has been on self-identification, cultural difference from other groups in a state, a special relationship with their traditional territ ...
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 Malaysia is a country in Southeast Asia. Featuring the Tanjung Piai, southernmost point of continental Eurasia, it is a federation, federal constitutional monarchy consisting of States and federal territories of Malaysia, 13 states and thre ...
, New Zealand, and the United States. Aboriginal title is an important area of
comparative law Comparative law is the study of differences and similarities between the law and legal systems of different countries. More specifically, it involves the study of the different legal systems (or "families") in existence around the world, includ ...
, 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 Indig ...
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 to that land by another colonising state. The requirements of proof for the recognition of ab ...
.


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 August ...
: the Act of State doctrine, the Doctrine of Continuity, and the
Recognition Doctrine Recognition may refer to: Machine learning *Pattern recognition, a branch of machine learning which encompasses the meanings below Biometric *Recognition of human individuals, or biometrics, used as a form of identification and access control * ...
., 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 Private property is a legal designation for the ownership of property by non-governmental Capacity (law), legal entities. Private property is distinguishable from public property, which is owned by a state entity, and from Collective ownership ...
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 Sir Edward Coke ( , formerly ; 1 February 1552 – 3 September 1634) was an English barrister, judge, and politician. He is often considered the greatest jurist of the Elizabethan era, Elizabethan and Jacobean era, Jacobean eras. Born into a ...
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, (2 March 1705 – 20 March 1793), was a British judge, politician, lawyer, and peer best known for his reforms to English law. Born in Scone Palace, Perthshire, to a family of Peerage of Scotland, Scott ...
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 West Africa, also known as Western Africa, is the westernmost region of Africa. The United Nations defines Western Africa as the 16 countries of Benin, Burkina Faso, Cape Verde, The Gambia, Ghana, Guinea, Guinea-Bissau, ...
'' (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 IN, In or in may refer to: Dans * India (country code IN) * Indiana, United States (postal code IN) * Ingolstadt, Germany (license plate code IN) * In, Russia, a town in the Jewish Autonomous Oblast Businesses and organizations * Independen ...
'' (1919) and '' Amodu Tijani v. Southern Nigeria (Secretary)'' (1921).Amodu Tijani v. Southern Nigeria (Secretary),
921 __NOTOC__ Year 921 ( CMXXI) was a common year starting on Monday of the Julian calendar. Events By place Byzantine Empire * March – Battle of Pegae: Bulgarian forces under '' kavhan'' (first minister) Theodore Sigritsa defeat ...
2 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 can generally be defined as supreme authority. Sovereignty entails hierarchy within a state as well as external autonomy for states. In any state, sovereignty is assigned to the person, body or institution that has the ultimate au ...
, and continuity to the present day.


Content

Aboriginal title does not constitute
allodial 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 ...
or
radical title Radical title is a concept in English common law that refers to the Crown's underlying title to all land held in overseas plantations and colonies. It grants the Crown the power to alienate others from land and to transfer beneficial ownership ...
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'', as in usage of or access to) is the right to use or en ...
, 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 In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" is real property held without limit of time (i.e., pe ...
. 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 a political concept used in Commonwealth realms. Depending on the context used, it generally refers to the entirety of the State (polity), state (or in federal realms, the relevant level of government in that state), the executive ...
")although Malaysia allows aboriginal title to be sold between indigenous peoples, unless contrary to
customary law A legal custom is the established pattern of behavior within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Customary law (also, consuetudinary or unofficial law) exists wher ...
. 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 The right to property, or the right to own property (cf. ownership), is often classified as a human right for natural persons regarding their possessions. A general recognition of a right to private property is found more rarely and is typicall ...
, 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 (legal person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, fo ...
.


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 to that land by another colonising state. The requirements of proof for the recognition of ab ...
in Australia - (50.2% of the area of the country's land and waters) *
Indian reserve In Canada, an Indian reserve () or First Nations reserve () is defined 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." ...
s in Canada - (0.2804% of the country's land area) *
Native Community Lands Native Community Lands (, acronym: TCO; also translated as Communal Lands of Origin), according to Bolivian law, are territories held by Indigenous peoples in Bolivia, indigenous people through Collective ownership, collective title. The creation ...
in Bolivia - (15% of the country's land area) * Indigenous territories in Brazil - (13% of the country's land area) * Indigenous territories in Colombia - (31.5% of the country's land area) *
Indian reservation An American Indian reservation is an area of land land tenure, held and governed by a List of federally recognized tribes in the contiguous United States#Description, U.S. federal government-recognized Native American tribal nation, whose gov ...
s in the United States - (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 are people with familial heritage from, or recognised membership of, the various ethnic groups living within the territory of contemporary Australia prior to History of Australia (1788–1850), British colonisation. The ...
(both Aboriginal and
Torres Strait Islander Torres Strait Islanders ( ) are the Indigenous Melanesians, Melanesian people of the Torres Strait Islands, which are part of the state of Queensland, Australia. Ethnically distinct from the Aboriginal Australians, Aboriginal peoples of the res ...
people) became more politically active, after being included in the Australian citizenry as a result of the
1967 referendum Events January * January 1 – Canada begins a year-long celebration of the 100th anniversary of Canadian Confederation, Confederation, featuring the Expo 67 World's Fair. * January 6 – Vietnam War: United States Marine Corps and Army of ...
.Several earlier cases tangentially involved issues of native title: ''Attorney-General v Brown'
(1847) 1 Legge 312
2 SCR (NSW) App 30; ; ; ; .
In 1971,
Blackburn J Colin Blackburn, Baron Blackburn, (18 May 1813 – 8 January 1896) was a British lawyer and judge. The son of a Scottish clergyman, he was educated in Scotland and England, before joining the English bar. He was little known to the legal world ...
of the
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. It is a ...
rejected the concept in ''
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 legal ...
'' (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 legal ...
'' (1971) 17 FLR 141 (27 April 1971)
Supreme Court In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
(NT, Australia).
The Aboriginal Land Rights Commission 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 th ...
, in ''Coe v Commonwealth'' (1979), attempted (unsuccessfully) to bring a
class action A class action is a form of lawsuit. Class Action may also refer to: * ''Class Action'' (film), 1991, starring Gene Hackman and Mary Elizabeth Mastrantonio * Class Action (band), a garage house band * "Class Action" (''Teenage Robot''), a 2002 e ...
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 tradi ...
,. established a statutory procedure that returned approximately 40% of the
Northern Territory The Northern Territory (abbreviated as NT; known formally as the Northern Territory of Australia and informally as the Territory) is an states and territories of Australia, Australian internal territory in the central and central-northern regi ...
to Aboriginal ownership; the
Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 The ''Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981'' (APYLRA or ''APY Land Rights Act'') grants certain land and other rights to the Anangu Pitjantjatjara Yankunytjatjara, Anangu Pitjantjatjara Yankunytjatjara (the Pitjantjatjara ...
,. had a similar effect in
South Australia South Australia (commonly abbreviated as SA) is a States and territories of Australia, state in the southern central part of Australia. With a total land area of , it is the fourth-largest of Australia's states and territories by area, which in ...
. The
High Court of Australia The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. The High Court was establi ...
, after paving the way in ''Mabo No 1'' by striking down a State statute under the ''
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 the ''Mabo case'' or simply ''Mabo''; ) is a landmark decision of the High Court of Australia that recognised the existence of Native Title in Australia.. It was brought by Eddie Mabo and othe ...
'' (1992).. ''Mabo No 2'', rejecting ''
terra nullius ''Terra nullius'' (, plural ''terrae nullius'') is a Latin expression meaning " nobody's land". Since the nineteenth century it has occasionally been used in international law as a principle to justify claims that territory may be acquired ...
'', 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 The ''Native Title Act 1993'' (Cth) is an act of 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 management sys ...
(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 lease A pastoral lease, sometimes called a pastoral run, is an arrangement used in both Australia and New Zealand where government-owned Crown land is leased out to Pastoral farming, graziers for the purpose of livestock grazing on rangelands. Austral ...
s, 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 st ...
''.. In response, Parliament passed the
Native Title Amendment Act 1998 The ''Native Title Act 1993'' (Cth) is an act of 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 management sy ...
(the "Ten Point Plan"), extinguishing a variety of Aboriginal land rights and giving state governments the ability to follow suit. ''
Western Australia v Ward Native title is the set of rights, recognised by Australian law, held by Aboriginal and Torres Strait Islander groups or individuals to land that derive from their maintenance of their traditional laws and customs. These Aboriginal title right ...
'' (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 vari ...
, which may be extinguished one by one, for example, by a mining lease. ''
Yorta Yorta v Victoria ''Yorta Yorta v Victoria'' was a native title claim by the Yorta Yorta, an Aboriginal Australian people of north central Victoria. The claim was dismissed by Justice Olney of the Federal Court of Australia in 1998. Appeals to the Full Bench ...
'' (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
Belize Belize is a country on the north-eastern 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 maritime boundary with Honduras to the southeast. P ...
under Spanish rule with limited property rights, were enforceable against the Crown, and had been upgraded to
fee simple In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" is real property held without limit of time (i.e., pe ...
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 The Supreme Court of Judicature of Belize is one of three types of courts in Belize, the lower ones being the Magistrate's Courts and the Court of Appeal. It is a court of original jurisdiction in both civil and criminal cases as well as an app ...
, 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 Maya () are an ethnolinguistic group of Indigenous peoples of the Americas, Indigenous peoples of Mesoamerica. The ancient Maya civilization was formed by members of this group, and today's Maya are generally descended from people who lived w ...
of the
Toledo District Toledo is the southernmost and least populated district in Belize. Punta Gorda is the District capital. According to the Human Development Index (HDI), it is the second most developed region in the country. The district has a diverse topograph ...
filed a complaint with the
Inter-American Commission on Human Rights The Inter-American Commission on Human Rights (the IACHR or, in the three other official languages Spanish, French, and Portuguese language, Portuguese CIDH, ''Comisión Interamericana de los Derechos Humanos'', ''Commission Interaméricaine des ...
(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 Abdulai Osman Conteh (5 August 1945 – 2 August 2024) was a Sierra Leonean lawyer and politician. He was a Vice-President of Sierra Leone, who served under President Joseph Saidu Momoh before he was ousted by the military junta in 1992. Cont ...
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, is a landlocked country in Southern Africa. Botswana is topographically flat, with approximately 70 percent of its territory part of the Kalahari Desert. It is bordered by South Africa to the sou ...
High Court recognized aboriginal title in '' Sesana and Others v Attorney General'' (2006), a case brought by named plaintiff
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 people. Biography Sesana lives in New Xade in the central Kalahari and works as a traditional medicine man. He moved t ...
, which held that the San have the right to reside in the
Central Kalahari Game Reserve Central Kalahari Game Reserve is an extensive list of national parks of Botswana, 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 are ...
(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 () 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 in common parlance. ...
. 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 since the Privy Council, in '' St. Catharines Milling v. The Queen'' (1888), characterized it as a personal
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'', as in usage of or access to) is the right to use or en ...
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 The ''Indian Act'' () is a Canadian Act of Parliament that concerns registered Indians, their bands, and the system of Indian reserves. First passed in 1876 and still in force with amendments, it is the primary document that defines how t ...
(1876), which laid out an assimilationist policy towards the
Aboriginal peoples in Canada Indigenous peoples in Canada (also known as Aboriginals) are the Indigenous peoples within the boundaries of Canada. They comprise the First Nations, Inuit, and Métis, representing roughly 5.0% of the total Canadian population. There are over ...
(
First Nations First nations are indigenous settlers or bands. First Nations, first nations, or first peoples may also refer to: Indigenous groups *List of Indigenous peoples *First Nations in Canada, Indigenous peoples of Canada who are neither Inuit nor Mé ...
,
Inuit Inuit (singular: Inuk) are a group of culturally and historically similar Indigenous peoples traditionally inhabiting the Arctic and Subarctic regions of North America and Russia, including Greenland, Labrador, Quebec, Nunavut, the Northwe ...
, and
Métis The Métis ( , , , ) are a mixed-race Indigenous people whose historical homelands include Canada's three Prairie Provinces extending into parts of Ontario, British Columbia, the Northwest Territories and the northwest United States. They ha ...
). 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 v British Columbia (AG)'' 973SCR 313, 9734 WWR 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 wa ...
'' (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 British 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 ...
.''
Calder v. British Columbia (Attorney General) ''Calder v British Columbia (AG)'' 973SCR 313, 9734 WWR 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 wa ...
'' (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 (; ), formerly spelled Nishga or Niska, are an Indigenous people in British Columbia, Canada. They reside in the Nass River valley of northwestern British Columbia. The origin of the term ''Niska'' is uncertain. The spelling ' ...
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'' ( 30 & 31 Vict. c. 3) (),''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, 1867'' (BNA Act), ...
("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 35 of the ''Constitution Act, 1982'' provides constitutional protection to the indigenous and treaty rights of indigenous peoples in Canada. The section, while within the Constitution of Canada, falls outside the ''Canadian Charter of Ri ...
explicitly recognized and preserved aboriginal rights. ''
R. v. Guerin ''Guerin v The Queen'' 9842 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 t ...
'' (1982), the first
Supreme Court of Canada The Supreme Court of Canada (SCC; , ) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants eac ...
decision handed down after the Constitution Act 1982, declared that Aboriginal title was ''
sui generis ( , ) is a Latin phrase that means "of its/their own kind" or "in a class by itself", therefore "unique". It denotes an exclusion to the larger system an object is in relation to. Several disciplines use the term to refer to unique entities. ...
'' 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 (legal person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, fo ...
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 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 ...
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.


Mainland China


Japan

In 2008, Japan gave partial recognition to the
Ainu people The Ainu are an Indigenous peoples, indigenous ethnic group who reside in northern Japan and southeastern Russia, including Hokkaido and the Tōhoku region of Honshu, as well as the land surrounding the Sea of Okhotsk, such as Sakhalin, the Ku ...
. 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. Featuring the Tanjung Piai, southernmost point of continental Eurasia, it is a federation, federal constitutional monarchy consisting of States and federal territories of Malaysia, 13 states and thre ...
recognised various statutory rights related to native customary laws (''
adat Alesis Digital Audio Tape, commonly referred to as ADAT, is a magnetic tape format used for the Sound recording and reproduction, recording of eight digital audio tracks onto the same S-VHS tape used by consumer VCRs, and the basis of a serie ...
'') 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 or inalienability may refer to: *Inalienable right, a type of legal right in jurisprudence **Restraint on alienation *Inalienable possession, a class of nouns in linguistics *Inalienable possessions Inalienable possessions (or imm ...
. 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 The Orang Asli are a Homogeneity and heterogeneity, heterogeneous Indigenous peoples, indigenous population forming a national minority in Malaysia. They are the oldest inhabitants of Peninsular Malaysia. As of 2017, the Orang Asli accounted f ...
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 or foederal (archaic) may refer to: Politics General *Federal monarchy, a federation of monarchies *Federation, or ''Federal state'' (federal system), a type of government characterized by both a central (federal) government and states or ...
wrote an opinion endorsing common law aboriginal title for the first time in '' Superintendent of Lands v. Madeli bin Salleh''.''Superintendent of Lands & Surveys Miri Division & Anor v Madeli bin Salleh (suing as the administrator of the estate of the deceased, Salleh bin Kilong)''
007 The ''James Bond'' franchise focuses on James Bond (literary character), the titular character, a fictional Secret Intelligence Service, British Secret Service agent created in 1953 by writer Ian Fleming, who featured him in twelve novels ...
6 CLJ 509;
008 008, OO8, O08, or 0O8 may refer to: * "008", a fictional 00 Agent In Ian Fleming's James Bond novels and the derived films, the 00 Section of MI6 is considered the secret service's elite. A 00 (pronounced "Double O") is a field agent who ho ...
2 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 Consideration is a concept of English law, English common law and is a necessity for simple contracts but not for special contracts (contracts by deed). The concept has been adopted by other common law jurisdictions. It is commonly referred to a ...
between members of the same community, as long as such transfers are not contrary to
customary law A legal custom is the established pattern of behavior within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Customary law (also, consuetudinary or unofficial law) exists wher ...
.


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 Māori King Movement, Kīngitanga movement for attempting to set up an alternative Māori people, Māori form of government that forbade the selling of land to European ...
) 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 Co ...
with little to claim except for river beds, 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 decision was based on common law and the
Treaty of Waitangi The Treaty of Waitangi (), sometimes referred to as ''Te Tiriti'', is a document of central importance to the history of New Zealand, Constitution of New Zealand, its constitution, and its national mythos. It has played a major role in the tr ...
(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 The Native Lands Act 1865 was an Act of Parliament in New Zealand that was designed to remove land from Māori people, Māori ownership for purchase by European settlers in New Zealand, European settlers as part of settler colonialism, settler ...
which established the Native Land Court (today the
Māori Land Court The Māori Land Court () is the specialist court of record in New Zealand that hears matters relating to Māori land. Established in 1865 as the Native Land Court, its purpose was to translate customary communal landholdings into individual ti ...
) 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 language, Māori-language word used in English, particularly in New Zealand. It generally means a non-Polynesians, Polynesian New Zealanders, New Zealander or more specifically a European New Zeala ...
(New Zealanders of European descent). That court created the "1840 rule", which converted Māori interests into
fee simple In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" is real property held without limit of time (i.e., pe ...
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". Since the nineteenth century it has occasionally been used in international law as a principle to justify claims that territory may be acquired ...
'' 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 Coal is a combustible black or brownish-black sedimentary rock, formed as rock strata called coal seams. Coal is mostly carbon with variable amounts of other elements, chiefly hydrogen, sulfur, oxygen, and nitrogen. Coal is a type of fossi ...
.
and the
Native Land Act 1909 Native may refer to: People * '' Jus sanguinis'', nationality by blood * '' Jus soli'', nationality by location of birth * Indigenous peoples, peoples with a set of specific rights based on their historical ties to a particular territory ** Nati ...
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 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 gave the Treaty of Waitangi recognition in New Zealand law for the first time and established the Waitangi Tribunal. The tribunal is empowered to investigate possible breaches of the principles of the Treaty of W ...
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 c ...
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'' 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 (legal person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, fo ...
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, 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 a government's executive, legislative, or administrative actions are subject to review by the judiciary. In a judicial review, a court may invalidate laws, acts, or governmental actions that are in ...
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'' 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 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 The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. The High Court was establi ...
, which had appellate jurisdiction before 1975, recognized aboriginal title in
Papua New Guinea Papua New Guinea, officially the Independent State of Papua New Guinea, is an island country in Oceania that comprises the eastern half of the island of New Guinea and offshore islands in Melanesia, a region of the southwestern Pacific Ocean n ...
—decades before it did so in Australia—in '' Geita Sebea v Territory of Papua'' (1941), ''
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: the process of dealing with or controlling things or people. ** Administrative assistant, traditionally known as a se ...
'' (1973) (the "Newtown case"), and other cases. The
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 (corresponding to the post-Independence National Court) and the overseas appellate tribunal ...
followed suit. Schedule 2 of the
Constitution of Papua New Guinea The law of Papua New Guinea consists of the Constitution, ordinary statutes enacted by National Parliament of Papua New Guinea, Parliament or adopted at independence from overseas (together with their pendant regulations) and judge-made law. Cons ...
recognizes
customary land tenure Customary land is land held under customary land tenure and the enjoyment of some use of land that arises through customary, unwritten practice rather than through written codified law. It is the tenure usually associated with indigenous communitie ...
, and 97% of the land in the country remains unalienated.


Russia


South Africa

In '' Alexkor v Richtersveld Community'' (2003), a suit under the Restitution of Land Rights Act 1994,''Alexkor Ltd v Richtersveld Community''
003 003, O03, 0O3, OO3 may refer to: * 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 blood type alleles in the AB ...
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 ru ...
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 cragg ...
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 Khoikhoi ( /ˈkɔɪkɔɪ/ ''KOY-koy'') (or Khoekhoe in Namibian orthography) are the traditionally nomadic pastoralist indigenous population of South Africa. They are often grouped with the hunter-gatherer San (literally "foragers") peop ...
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. The main geography of Taiwan, island of Taiwan, also known as ''Formosa'', lies between the East China Sea, East and South China Seas in the northwestern Pacific Ocea ...
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 ( Yami: Tao no pongso) 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 wa ...
poly 268 905 221 867 196 685 231 681 229 713 262 738 296 726
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 ma ...
poly 203 690 227 638 255 641 263 684 288 694 260 733 229 710 231 677
Rukai people The Rukai (Rukai language, Rukai: ) are one of the Taiwanese aborigines, 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 ...
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 ...
poly 214 587 255 586 286 527 260 487 237 491 219 548
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 Indige ...
poly 224 640 216 592 286 550 290 519 257 486 275 455 303 432 290 416 301 401 350 416 389 452 358 579 327 604 314 666 321 677 288 694 258 684 Bunun people poly 345 697 316 672 327 600 358 584 399 430 430 438 393 607
Amis people The Amis (; ), also known as the Pangcah (which means 'people' and 'kinsmen'), are an indigenous Austronesian ethnic group native to Taiwan. They speak the Amis language (; ), an Austronesian language, and are one of the sixteen officially ...
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 l ...
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 (Zintun, Lake Candidius) in central Taiwan for at least a century, and probably since the time of the Qing dynasty. The Thao/Ngan people numbere ...
poly 255 420 281 409 288 414 298 399 263 355 244 355 237 391
Sediq people The Seediq (sometimes Sediq, Seejiq, , , or ; ) are a Taiwanese indigenous people who live primarily in Nantou County and Hualien County. Their language is also known as Seediq. They were officially recognized as Taiwan's 14th indigenous group ...
poly 391 450 357 419 301 399 263 357 283 265 350 252 348 211 363 172 448 162 429 200 483 239 478 304 447 350 425 360
Atayal people The Atayal (Atayal language, Atayal: Tayal), also known as the Tayal and the Tayan, are a Taiwanese indigenous peoples, Taiwanese indigenous people. The Atayal people number around 90,000, approximately 15.9% of Taiwan's total indigenous popula ...
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 ...
desc bottom-left
Taiwanese indigenous peoples Taiwanese indigenous peoples, formerly called Taiwanese aborigines, are the indigenous peoples of Taiwan, with the nationally recognized subgroups numbering about 600,303 or 3% of the Geography of Taiwan, island's population. This total is incr ...
are
Austronesian peoples The Austronesian people, sometimes referred to as Austronesian-speaking peoples, are a large group of peoples who have settled in Taiwan, maritime Southeast Asia, parts of mainland Southeast Asia, Micronesia, coastal New Guinea, Island Melan ...
, making up a little over 2% of
Taiwan Taiwan, officially the Republic of China (ROC), is a country in East Asia. The main geography of Taiwan, island of Taiwan, also known as ''Formosa'', lies between the East China Sea, East and South China Seas in the northwestern Pacific Ocea ...
's population; the rest of the population is composed of ethnic Chinese who colonised the island from the 17th century onward. From 1895 Taiwan was under Japanese rule and indigenous rights to land were extinguished. In 1945, the
Republic of China Taiwan, officially the Republic of China (ROC), is a country in East Asia. The main geography of Taiwan, island of Taiwan, also known as ''Formosa'', lies between the East China Sea, East and South China Seas in the northwestern Pacific Ocea ...
(ROC) took control of Taiwan from the
Japanese Empire The Empire of Japan, also known as the Japanese Empire or Imperial Japan, was the Japanese nation state that existed from the Meiji Restoration on January 3, 1868, until the Constitution of Japan took effect on May 3, 1947. From 1910 to ...
; a rump Republic of China was established on Taiwan in 1949 after the
Communists Communism () is a sociopolitical, philosophical, and economic ideology within the socialist movement, whose goal is the creation of a communist society, a socioeconomic order centered on common ownership of the means of production, d ...
won the
Chinese Civil War The Chinese Civil War was fought between the Kuomintang-led Nationalist government, government of the Republic of China (1912–1949), Republic of China and the forces of the Chinese Communist Party (CCP). Armed conflict continued intermitt ...
. 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. 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.


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 The chief justice of the United Republic of Tanzania is the highest post in the judicial system of United Republic of Tanzania. The chief justice is appointed by the President of United Republic of Tanzania, president and presides over the Court o ...
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) Masai may refer to: *Masai, Johor, a town in Malaysia * Masai Plateau, a plateau in Kolhapur, Maharashtra, India *Maasai peopl ...
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 ( ; ; ; : rhinoceros or rhinoceroses), commonly abbreviated to rhino, is a member of any of the five extant taxon, extant species (or numerous extinct species) of odd-toed ungulates (perissodactyls) in the family (biology), famil ...
farm. The government has yet to comply with the ruling.


United States

The United States, under the tenure of Chief Justice
John Marshall John Marshall (September 24, 1755July 6, 1835) was an American statesman, jurist, and Founding Fathers of the United States, Founding Father who served as the fourth chief justice of the United States from 1801 until his death in 1835. He remai ...
, became the first jurisdiction in the world to judicially acknowledge (in ''
dicta In legal writing, a (Latin 'something that has been said'; plural ) is a statement made by a court. It may or may not be binding as a precedent. United States In United States legal terminology, a ''dictum'' is a statement of opinion conside ...
'') the existence of aboriginal title in series of key decisions. Marshall envisioned 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'', as in usage of or access to) is the right to use or en ...
, 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 (legal person or group of persons). Typically, a fiduciary prudently takes care of money or other assets for another person. One party, fo ...
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 monarch, sovereign or State (polity), state cannot commit a legal wrong and is immune from lawsuit, civil suit or criminal law, criminal prosecution, strictly speaking in mode ...
barred the enforcement of aboriginal title until the passage of the Indian Claims Commission Act of 1946, which created the
Indian Claims Commission The Indian Claims Commission (ICC) 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 longstandin ...
(succeeded by the
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, renamed in 1948 to the United States Court of Claims (), and abolished in 1982. Then, its jurisdiction was assumed by the n ...
in 1978, and later the
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 courts, United States federal court that hears monetary claims against the Federal government of the United States, U.S. government. It ...
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'' (1955) established that the extinguishment of aboriginal title was not a "
taking Taking or The Taking 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 Arts and entertainment * ''The Taking'', a 2 ...
" 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 A commonwealth is a traditional English term for a political community founded for the common good. The noun "commonwealth", meaning "public welfare, general good or advantage", dates from the 15th century. Originally a phrase (the common-wealth ...
jurisdictions; for instance,
Barbados Barbados, officially the Republic of Barbados, is an island country in the Atlantic Ocean. It is part of the Lesser Antilles of the West Indies and the easternmost island of the Caribbean region. It lies on the boundary of the South American ...
and the
Pitcairn Islands The Pitcairn Islands ( ; Pitkern: '), officially Pitcairn, Henderson, Ducie and Oeno Islands, are a group of four volcanic islands in the southern Pacific Ocean that form the sole British Overseas Territories, British Overseas Territory in the ...
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. The term "Arawak" has been applied at various times to different Indigenous groups, from the Lokono of South America to the Taíno (Island Arawaks), w ...
and Carib, and Polynesian peoples, respectively.


India

Unlike most jurisdictions, the doctrine that aboriginal title is
inalienable Inalienable or inalienability may refer to: *Inalienable right, a type of legal right in jurisprudence **Restraint on alienation *Inalienable possession, a class of nouns in linguistics *Inalienable possessions Inalienable possessions (or imm ...
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 that was issued jointly by Charles Pratt, 1st Earl Camden, the Attorney General for England and Wales, and Charles Yorke, the Solicitor General fo ...
(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 that was founded in 1600 and dissolved in 1874. It was formed to Indian Ocean trade, trade in the Indian Ocean region, initially with the East Indies (South A ...
from the Princely states 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 The Supreme Court of India is the supreme judiciary of India, judicial authority and the supreme court, highest court of the Republic of India. It is the final Appellate court, court of appeal for all civil and criminal cases in India. It also ...
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 of the Julian calendar. Events By place Europe * Spring – The 12-year-old King Otto III gives the Sword of Saints Cosmas and Damian (also known as the Sword of Essen) as ...
INSC 77.
Adivasi The Adivasi (also transliterated as Adibasi) are heterogeneous tribal groups across the Indian subcontinent. The term is a recent invention from the 20th century and is now widely used as a self-designation by groups classified as Scheduled Tr ...
land rights litigation has yielded little result. Most Adivasi live in state-owned forests.


See also

*
Ancestral domain Ancestral domain or ancestral lands are the lands, territories and resources of indigenous peoples, particularly in the Asia-Pacific region. The term differs from indigenous land rights, Aboriginal title or Native Title by directly indicating r ...
* Native Tongue Title


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''. * Strelein, L. 2009 (2d ed.). ''Compromised Jurisprudence: Native Title Cases Since Mabo''. Aboriginal Studies Press, Canberra. ;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 Legal Assistance Center. 2006. ''"Our land they took": San land rights under threat in Namibia''. ;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''.


External links


Aboriginal Title Implementation
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