Aboriginal title, also known as native title (Australia), customary title (New Zealand), original Indian title (US), is the
common law doctrine that the land rights of
indigenous peoples to
customary tenure persist after the assumption of
sovereignty. Indigenous peoples may also have certain rights on
Crown land in many jurisdictions.
Australia Indigenous land rights have historically been undermined by a variety of doctrines such as
terra nullius. which is a Latin term meaning "land belonging to no one" In 1971, a group of Meriam people in Australia issued a legal claim for their ownership of their island of Mer in the Torres Strait. In their legal claim they issued that their land is inherently and exclusively owned, lived and governed by Meriam people, where they historically managed its political and social issues. After years of the case being heard by the legal courts, and after the death of one of the plaintiffs (Eddie Mabo), the High Court's judgement issued a recognition of the native's ownership to land and the denial of the myth of the terra nullius. First Nation leader
George Manuel's Constitution Express idea is a notable attribute to the Aboriginal Rights Movement, among other actions taken by the nations. The Canadian government responded to the nations' advocacy with what came to be referred to as the "
White Paper." This document, published in 1969, outlined 5 doctrines that left many indigenous leaders unsatisfied, sparking a meeting of the
Indian Association of Alberta the next year. At this meeting, "
The Red Paper" (entitled "Citizen Plus") was issued, in which the indigenous perspective was outlined. Of the points outlined, land rights are a large part. The period that followed was an important one for the future of the First Nations and their rights. As state by Arthur Manuel, son of George Manuel,It was during this period that the national Indian movement began to take shape and to draw on its greatest resource, the First Nations people from across Canada who saw the
National Indian Brotherhood as a vehicle they could use to push the federal government for a just settlement on a range of self-government, land title and treaty issues.The leading case for Aboriginal title in
Canada is
Delgamuukw v. British Columbia (1997). This case was a milestone for First Nation land rights. It legitimized oral testimony and proved the nations in British Columbia had land rights unaffected by colonization. However, it did not declare title. The first case to do so in Canada was the
Tsilhqot'in Nation v. British Columbia (2014). In this case, the Supreme Court of Canada confirmed the aboriginal title of the
Tsilhqot'in Nation.
Japan Ever since the
Ainu were recognised as the indigenous people of
Japan in 2019, the Ainu have been able to apply for special land rights if requested. The
Ainu Promotion Act 2019 specifically lists special rights over "national parks, rivers and trademarks to preserve Ainu culture".
Latin America As the political systems of some
Latin American countries are now becoming more democratic and open to listening and embracing the views of minorities these issues of
land rights have clearly come up to the surface of the political life. Despite this new "re-recognition" bit by bit, the
indigenous groups are still among the poorest populations of the countries and they often have less access to resources and they have lesser opportunities for progress and development. The legal situation of Indigenous land rights in the countries of Latin America is highly varied. There is still a very broad variation of Indigenous rights, laws and recognition throughout the whole continent. In the year 1957, the
International Labour Organization(ILO), made the ILO Convention 107. This
convention created laws and norms for the protection and integration of Indigenous peoples in independent countries. All the independent countries of Latin America and the
Caribbean of that time ratified this convention. Since the 1960s they started with the recognition of the first Indigenous land claims since the colonial era. In the year 1989 the ILO made the
Convention 169; the convention concerning Indigenous and Tribal Peoples in Independent Countries, which updates the ILO 107 of 1957. In this convention was also the recognition of the very close and important relationship between land and identity, or cultural identity very important. Today, this convention has been ratified by 15 Latin American and Caribbean countries. Even in countries where it has been ratified, limited implementation has led to conflicts over indigenous land rights such as the
Escobal mine protests in Guatemala, protection of
Yasuní Oil in Ecuador, and the conflict between the
Saramaka and Suriname—to name a few.
New Zealand Indigenous land rights were recognised in the 1840
Treaty of Waitangi made between the
British Crown and various
Māori chiefs. The Treaty is riddled with translational errors that places more power in the hands of the Crown in one translation and the Māori people in another. In the context of land rights, the Māori text allowed for the Māori to retain ownership of prized possessions such as lands and forests for as long as they wished. Despite this, the Crown repeatedly breached the Treaty, with violations dating back to the 1840s. a direct breach to the Treaty. Unrest between the Māori and the Crown continued into the 19th and 20th centuries, including a series of wars detailed in a book called
The New Zealand Wars. While the Treaty itself has often been ignored according to historians, in 1975—as the fulfillment of a political promise—the New Zealand government established the
Waitangi Tribunal. The black South Africans were confined to reserves or
Bantustans and could not purchase land outside of those areas. These areas were often arid and not suitable for agriculture which led to severe socio-economic consequences for the Native population. There are a variety of possible motives for passing this act, some of which include wanting to limit African squatters and encouragement from mining companies, although it is not known as to what the reason was. It was not until the Restitution of Land Rights Act of 1994 that the Native Land Act and other discriminatory legislation was addressed and attempted to be resolved. This new act set in place a process and identified who would qualify for the restitutions. The general history of South Africa is heavily tied to the governing body's relationship to its Native population.
United States The foundational decision for Aboriginal title in the United States is
Johnson v. McIntosh (1823), authored by Chief Justice
John Marshall. Marshall's rulings are an important contributor to Native law and have been termed the
Marshall Trilogy, referring to
Johnson v. McIntosh (1823),
Cherokee Nation v. Georgia (1831), and
Worcester v. Georgia (1832). In
Johnson v. McIntosh, under the
doctrine of discovery, it was ruled that
Native Americans did not own their land, but rather had occupancy rights. Thus, Native Americans could not sale land unless it was to the United States. The Supreme Court has faced considerable controversy in cases dealing with natural resource treaties.
Native Americans in the United States have largely been relegated to
Indian reservations managed by tribes under the
United States Department of the Interior's
Bureau of Indian Affairs. In the case,
Winters v. United States (1908), it was established that reservations are to be prioritized rights to water over non-native use. Contested treaty cases have not always been ruled to the favor of Native Americans, however; an example is the
United States v. Dion (1986) case. ==Civil law==