Aboriginal title
[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] 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.[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.[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.[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.[21] 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.[22] 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.[28] In 2007, Chief Justice Abdulai Conteh ruled in favor of the Maya communities of Conejo and Santa Cruz, citing the IACHR judgement and key precedents from other common law jurisdictions.St. Catharines was decided in the wake of the Indian Act (1876), which laid out an assimilationist policy towards the Aboriginal peoples in Canada (First Nations, Inuit, and Métis).R. v. Guerin (1982), the first Supreme Court of Canada decision handed down after the Constitution Act 1982, declared that Aboriginal title was sui generis and that the federal government has a fiduciary duty to preserve it.[64][65] 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.[66] 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.[75] In 2007, the Federal Court of Malaysia wrote an opinion endorsing common law aboriginal title for the first time in Superintendent of Lands v. Madeli bin Salleh.The Privy Council disagreed in Nireaha Tamaki v Baker,[83] and other rulings,[84][85] but courts in New Zealand continued to hand down decisions materially similar to Wi Parata.[90] Favorable court decisions turned aboriginal title litigation towards the lake beds,[91][92] but the Māori were unsuccessful in claiming the rivers[93] the beaches,[94] and customary fishing rights on the foreshore.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.[96] 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.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.[100][101][102] 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.In Alexkor v Richtersveld Community (2003), a suit under the Restitution of Land Rights Act 1994,[115] lawyers gathered case law from settler jurisdictions around the world, and judges of the Constitutional Court of South Africa talked frankly about Aboriginal title.From then, indigenous people's access to traditional lands was limited, as the ROC built cities, railroads, national parks, mines and tourist attractions.[130] The Court of Appeal of Tanzania overturned the judgement in 1985, without reversing the doctrine of aboriginal title, holding that the specific claimants had not proved that they were native.[134] In 1999, the Maasai were awarded monetary compensation and alternative land by the Court of Appeal due to their eviction from the Mkomazi Game Reserve when a foreign investor started a rhino farm.The United States, under the tenure of Chief Justice John Marshall, became the first jurisdiction in the world to judicially acknowledge (in dicta) the existence of aboriginal title in series of key decisions.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.[147] There is no possibility for aboriginal title litigation in some Commonwealth jurisdictions; for instance, Barbados and the Pitcairn Islands were uninhabited for hundreds of years prior to colonization, although they had previously been inhabited by the Arawak and Carib, and Polynesian peoples, respectively.
ProtestsForeshore and Seabed Act 2004common lawland rights of indigenous peoplescustomary tenuresovereigntycolonisinginalienableeither individually or collectivelyin Australiain the United Statesindigenous rightsfiduciary dutycustomary international lawindigenous peoplesMalaysiacomparative lawIndigenous land rightsnative titleMohegan SunJudicial Committee of the Privy CouncilAct of Stateprivate propertyEdward CokeCalvin's CaseLord MansfieldMohegan Indians v. ConnecticutAmodu Tijani v. Southern Nigeria (Secretary)allodial titleradical titleusufructfee simplethe Crowncustomary lawpublic purposeright to propertyIndian reservesNative Community LandsIndigenous territoriesIndian reservationsNative title in AustraliaIndigenous AustraliansAboriginalTorres Strait Islander1967 referendumBlackburn JSupreme Court of the Northern TerritoryMilirrpum v Nabalco Pty LtdAboriginal Land Rights CommissionPaul Coeclass actionAboriginal Land Rights Act 1976Northern TerritoryAnangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981South AustraliaHigh Court of AustraliaMabo No 1Racial Discrimination Act 1975Mabo v Queensland (No 2)terra nulliusNative Title Act 1993National Native Title Tribunalpastoral leasesWik Peoples v QueenslandNative Title Amendment Act 1998Western Australia v Wardbundle of rightsYorta Yorta v VictoriaPrivy CouncilBelizeBelize Supreme CourtMaya peoplesToledo DistrictInter-American Commission on Human RightsAmerican DeclarationAbdulai ContehalcaldesBelize ConstitutionBotswanaRoy SesanaCentral Kalahari Game Reservetime immemorialCanadian Indigenous lawIndigenous land claims in CanadaSt. Catharines Milling v. The QueenIndian ActAboriginal peoples in CanadaFirst NationsMétisCalder v. British Columbia (Attorney General)Royal Proclamation of 1763Nisga'aConstitution Act, 1867Section Thirty-five of the Constitution Act, 1982R. v. GuerinSupreme Court of Canadasui generisNumbered TreatiesDelgamuukw v. British ColumbiaTsilhqot'in Nation v. British ColumbiaAutonomous administrative divisions of ChinaAinu peopleOrang AsliO. 53 RHCrepresentative actionFederal Court of MalaysiaconsiderationTreaty of WaitangiNew Zealand land confiscationsMāoririver bedslake bedsforeshore and seabedR v SymondsChapman JNative Lands Act 1865Māori Land CourtPākehāWi Parata v the Bishop of Wellingtonstatute of limitationsTreaty of Waitangi Act 1975Waitangi Tribunalfacilitate settlementsPaul McHughNew Zealand Maori Council v Attorney-GeneralTe Ture Whenua Māori Act 1993