20 Facts About 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.

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Aboriginal title is referred to as indigenous title, native title, original Indian title, and customary title .

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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.

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Aboriginal title was first acknowledged in the early 19th century, in decisions in which indigenous peoples were not a party.

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Significant aboriginal title litigation resulting in victories for indigenous peoples did not arise until recent decades.

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Aboriginal title is an important area of comparative law, with many cases being cited as persuasive authority across jurisdictions.

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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.

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Aboriginal title can be extinguished by the general government, but again, the requirement to do this varies by country.

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Mabo No 2, rejecting terra nullius, held that native Aboriginal title exists and is extinguishable by the sovereign, without compensation .

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The Maya peoples of the Toledo District filed a complaint with the Inter-American Commission on Human Rights, which sided with the Maya in 2004 and stated that the failure of the government of Belize to demarcate and Aboriginal title the Maya cultural lands was a violation of the right to property in Article XXIII of the American Declaration.

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Aboriginal title has been recognized in Common Law in Canada since the Privy Council, in St Catharines Milling v The Queen, characterized it as a personal usufruct at the pleasure of the Queen.

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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.

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The court reaffirmed that areas under Aboriginal title are not outside the jurisdiction of the provinces, and provincial law still applies.

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Rajah's Order IX of 1875 recognized aboriginal title by providing for its extinguishment where cleared land was abandoned.

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The Aboriginal title People's Act 1954 creates aboriginal areas and reserves, providing for state acquisition of land without compensation.

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The High Court cited the Federal Constitution and the Aboriginal title Peoples Act, as well as decisions from the Privy Council, Australia, Canada, New Zealand, and the United States.

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Chapman J went farther than any judge—before or since—in declaring that aboriginal title "cannot be extinguished otherwise than by the free consent of the Native occupiers".

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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.

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Tee-Hit-Ton Indians v United States established that the extinguishment of aboriginal title was not a "taking" within the meaning of the Fifth Amendment.

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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" to be compensable.

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