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. 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"). 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 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 under Spanish rule with limited property rights, were enforceable against the Crown, and had been upgraded to
fee simple 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, but the Court failed to act on the claim. The
Maya peoples of the
Toledo District filed a complaint with the
Inter-American Commission on Human Rights (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 ruled in favor of the Maya communities of
Conejo and Santa Cruz, citing the IACHR judgement and key precedents from other common law jurisdictions.
Botswana A
Botswana High Court recognized aboriginal title in
Sesana and Others v Attorney General (2006), a case brought by named plaintiff
Roy Sesana, which held that the
San have the right to reside in the
Central Kalahari Game Reserve (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. 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 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 (1876), which laid out an assimilationist policy towards the
Aboriginal peoples in Canada (
First Nations,
Inuit, and
Métis). 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) (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. Six of the judges split 3–3 on the question of whether Aboriginal title had been extinguished. The
Nisga'a 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.
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 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 [A]boriginal title, the [A]boriginal 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. 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 recognised various statutory rights related to native customary laws (
adat) 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. 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 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 wrote an opinion endorsing common law aboriginal title for the first time in
Superintendent of Lands v. Madeli bin Salleh. 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."
New Zealand (1840) 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) has left the
Māori 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. The decision was based on common law and the
Treaty of Waitangi (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".
Symonds remained the guiding principle, until
Wi Parata v the Bishop of Wellington (1877).
Wi Parata undid
Symonds, advocating the doctrine of
terra nullius 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 1903 and the
Native Land Act 1909 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 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 created the
Waitangi Tribunal 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 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 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 2004 Act was repealed with the passage of the
Marine and Coastal Area (Takutai Moana) Act 2011.
Papua New Guinea The
High Court of Australia, which had appellate jurisdiction before 1975, recognized aboriginal title in
Papua New Guinea—decades before it did so in Australia—in
Geita Sebea v Territory of Papua (1941),
Administration of Papua and New Guinea v Daera Guba (1973) (the "Newtown case"), and other cases. The
Supreme Court of Papua New Guinea followed suit. Schedule 2 of the
Constitution of Papua New Guinea recognizes
customary land tenure, and 97% of the land in the country remains unalienated.
Russia South Africa desert In
Alexkor v Richtersveld Community (2003), a suit under the
Restitution of Land Rights Act 1994, lawyers gathered case law from settler jurisdictions around the world, and judges of the
Constitutional Court of South Africa talked frankly about Aboriginal title. The Land Claims Court had dismissed the complaint of the
Richtersveld 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. The legacy of the
Natives Land Act also means that few communities retain relationships with the land of which they held before 1913. In 1945, the
Republic of China (ROC) took control of Taiwan from the
Empire of Japan; a
rump Republic of China was established on Taiwan in 1949 after the
Communists won the
Chinese Civil War. 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 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 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 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 government has yet to comply with the ruling.
United States 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. Marshall envisioned a
usufruct, 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 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 barred the enforcement of aboriginal title until the passage of the
Indian Claims Commission Act of 1946, which created the
Indian Claims Commission (succeeded by the
United States Court of Claims in 1978, and later the
United States Court of Federal Claims 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" 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==