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 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.
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.
British colonial legacy
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., 1989, at 161–179. The Act of State doctrine held that the Crown could confiscate or extinguish real or personal property rights in the process of conquering, without scrutiny from any British court, but could not perpetrate an Act of State against its own subjects. The Doctrine of Continuity presumed that the Crown did not intend to extinguish private property upon acquiring sovereignty, and thus that pre-existing interests were enforceable under British law. Its mirror was the Recognition Doctrine, which held that private property rights were presumed to be extinguished in the absence of explicit recognition.
In 1608, the same year in which the Doctrine of Continuity emerged,The Case of Tanistry (1608) Davis 28 (conquest of Ireland).Witrong v. Blany (1674) 3 Keb. 401 (conquest of Wales). Edward Coke delivered a famous dictum in Calvin's Case (1608) that the laws of all non-Christians would be abrogated upon their conquest.Calvin's Case (1608) 77 E.R. 377, 397–98 (K.B.):"All infidels are in law perpetui inimici, perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a remote possibility) for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual hostility, and can be no peace; . . . And upon this ground there is a diversity between a conquest of a kingdom of a Christian King, and the conquest of a kingdom of an infidel; for if a King come to a Christian kingdom by conquest, . . . he may at his pleasure alter and change the laws of that kingdom: but until he doth make an alteration of those laws the ancient laws of that kingdom remain. But if a Christian King should conquer a kingdom of an infidel, and bring them under his subjection, there ipso facto the laws of the infidel are abrogated, for that they be not only against Christianity, but against the law of God and of nature, contained in the decalogue; and in that case, until certain laws be established amongst them, the King by himself, and such Judges as he shall appoint, shall judge them and their causes according to natural equity." Coke's view was not put into practice, but was rejected by Lord Mansfield in 1774.Campbell v. Hall (1774) Lofft 655. 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).Oyekan & Ors v Adele 2 All ER 785 (Nigeria).
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.Mark Walters, "'Mohegan Indians v. Connecticut'(1705–1773) and the Legal Status of Aboriginal Customary Laws and Government in British North America" , 33 4 (2007).For modern litigation over the same land, see Mohegan Tribe v. Connecticut, 483 F. Supp. 597 (D. Conn. 1980), aff'd, 638 F.2d 612 (2d Cir. 1980), cert. denied 452 U.S. 968, on remand, 528 F. Supp. 1359 (D. Conn. 1982). Other important Privy Council decisions include In re Southern Rhodesia (1919)In re Southern Rhodesia AC 211. rejected a claim for aboriginal title, writing 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.In re Southern Rhodesia AC 211, 233–34.
Amodu Tijani v. Southern Nigeria (Secretary) (1921).Amodu Tijani v. Southern Nigeria (Secretary), 2 AC 399. 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.In chronological order: Sobhuza II v Miller AC 518 (Swaziland); Sunmonu v Disu Raphael (Deceased) AC 881 (Nigeria); Bakare Ajakaiye v Lieutenant Governor of the Southern Provinces AC 679 (Nigeria); Sakariyawo Oshodi v Moriamo Dakolo (4) AC 667 (Nigeria); Stool of Abinabina v. Chief Kojo Enyimadu (1953) AC 207 (West African Gold Coast); Nalukuya (Rata Taito) v Director of Lands AC 325 (Fiji); Adeyinka Oyekan v Musendiku Adele 2 All ER 785 (West Africa). Modern decisions have heaped criticism upon the views expressed in Southern Rhodesia.Nyali v Attorney General 1 QB 1 (Lord Denning).
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, and continuity to the present day.
Content Aboriginal title does not constitute allodial title or radical title in any jurisdiction. Instead, its content is generally described as a usufruct, i.e. a right to use, although in practice this may mean anything from a right to use land for specific, enumerated purposes, or a general right to use which approximates fee simple.
It is common ground among the relevant jurisdictions that aboriginal title is inalienable, in the sense that it cannot be transferred except to the general government (known, in many of the relevant jurisdictions, as "the Crown")although Malaysia allows aboriginal title to be sold between indigenous peoples, unless contrary to customary law. Especially in Australia, the content of aboriginal title varies with the degree to which claimants are able to satisfy the standard of proof for recognition. In particular, the content of aboriginal title may be tied to the traditions and customs of the indigenous peoples, and only accommodate growth and change to a limited extent.
Extinguishment Aboriginal title can be extinguished by the general government, but again, the requirement to do this varies by country. Some require the legislature to be explicit when it does this, others hold that extinguishment can be inferred from the government's treatment of the land. In Canada, the Crown cannot extinguish aboriginal title without the explicit prior informed consent of the proper aboriginal title holders. New Zealand formerly required consent, but today requires only a justification, akin to a public purpose requirement.
Jurisdictions differ on whether the state is required to pay compensation upon extinguishing aboriginal title. Theories for the payment of compensation include the right to property, as protected by constitutional or common law, and the breach of a fiduciary duty.
Percentage of land Native title in Australia - (50.2% of the area of the country's land and waters) Indian reserves in Canada - (0.2804% of the country's land area) Native Community Lands 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 reservations 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 (both Aboriginal and Torres Strait Islander people) became more politically active, after being included in the Australian citizenry as a result of the 1967 referendum.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 of the Supreme Court of the Northern Territory rejected the concept in Milirrpum v Nabalco Pty Ltd (the "Gove land rights case").Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (27 April 1971) Supreme Court (NT, Australia). The Aboriginal Land Rights Commission was established in 1973 in the wake of Milirrpum. Paul Coe, in Coe v Commonwealth (1979), attempted (unsuccessfully) to bring a class action on behalf of all Aborigines claiming all of Australia. The Aboriginal Land Rights Act 1976,. established a statutory procedure that returned approximately 40% of the Northern Territory to Aboriginal ownership; the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981,. had a similar effect in South Australia.
The High Court of Australia, after paving the way in Mabo No 1 by striking down a State statute under the Racial Discrimination Act 1975,. overruled Milirrpum in Mabo v Queensland (No 2) (1992).. Mabo No 2, rejecting terra nullius, held that native title exists (6–1) and is extinguishable by the sovereign (7–0), without compensation (4–3). In the wake of the decision, the Australian Parliament passed the Native Title Act 1993 (NTA),. codifying the doctrine and establishing the National Native Title Tribunal (NNTT). Western Australia v Commonwealth upheld the NTA and struck down a conflicting Western Australia statute..
In 1996, the High Court held that pastoral leases, which cover nearly half of Australia, do not extinguish native title in Wik Peoples v Queensland.. In response, Parliament passed the Native Title Amendment Act 1998 (the "Ten Point Plan"), extinguishing a variety of Aboriginal land rights and giving state governments the ability to follow suit.
Western Australia v Ward (2002) held that native title is a bundle of rights, which may be extinguished one by one, for example, by a mining lease. Yorta Yorta v Victoria (2002), an appeal from the first native title claim to go to trial since the Native Title Act, adopted strict requirements of continuity of traditional laws and customs for native title claims to succeed.
Belize