Aboriginal title

Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, 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, and that it may be held either individually or collectively.

Concept in common law of indigenous land rights persisting after colonization

Protests against the Foreshore and Seabed Act 2004, which extinguished claims to aboriginal title to the foreshore and seabeds in New Zealand

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 to indigenous peoples. While the judge-made doctrine arises from customary international law, it has been codified nationally by legislation, treaties, and constitutions.

Aboriginal title was first acknowledged in the early 19th century, in decisions in which indigenous peoples 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. Legislated Indigenous land rights often follow from the recognition of native title.

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The Mohegan Sun casino commemorates the site of the world’s first common-law indigenous land rights case, decided in 1773.

Aboriginal title arose at the intersection of three common law doctrines articulated by the Judicial Committee of the Privy Council: the Act of State doctrine, the Doctrine of Continuity, and the Recognition Doctrine.[1] 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.[1] The Doctrine of Continuity presumed that the Crown did not intend to extinguish private property upon acquiring sovereignty, and thus that pre-existing interests were enforceable under British law.[1] Its mirror was the Recognition Doctrine, which held that private property rights were presumed to be extinguished in the absence of explicit recognition.[1]

In 1608, the same year in which the Doctrine of Continuity emerged,[2][3]Edward Coke delivered a famous dictum in Calvin’s Case (1608) that the laws of all non-Christians would be abrogated upon their conquest.[4] Coke’s view was not put into practice, but was rejected by Lord Mansfield in 1774.[5] 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).[6]

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.[7][n 1] Other important Privy Council decisions include In re Southern Rhodesia (1919)[8] and Amodu Tijani v. Southern Nigeria (Secretary) (1921).[9]

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.[10]

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.”[9] 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.[11] Modern decisions have heaped criticism upon the views expressed in Southern Rhodesia.[12]

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