Aboriginal title
A common law doctrine recognizing indigenous land rights after colonization.
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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.
- Land area in United States (Indian reser
- Approximately 227,000 sq miles (about 2.3% of land area)
Lore & Background
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.
Reader's Guide
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. 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. 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.
Did You Know?
- 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).
- 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.
- Native title in Australia covers 8,099,264 km² (50.2% of the area of the country's land and waters).
- Indian reservations in the United States cover 227,000 km² (2.308% of the country's land area).
Frequently Asked Questions
What is Aboriginal title in the British Empire context?
Aboriginal title is a common law principle holding that indigenous peoples keep their customary land rights even after Britain or another colonizing power claims sovereignty over a territory. The same doctrine goes by different names regionally, such as native title in Australia or original Indian title in the United States.
When was Aboriginal title first recognized by courts?
The doctrine first gained formal acknowledgment in the early 19th century through common law rulings. Since then, each jurisdiction that inherited British legal traditions has shaped its own version of the rule.
Which territories does Aboriginal title apply to?
It is most actively litigated and applied in Australia, Canada, Malaysia, New Zealand, and the United States. Each of these places has developed distinct rules governing how the title is proved, what it entitles the holder to do, and under what circumstances it can be extinguished.
Can Aboriginal title be sold or taken away?
Virtually every jurisdiction that recognizes the doctrine treats it as inalienable, so it cannot simply be transferred or sold by the indigenous holders. That said, specific legal mechanisms for extinguishment exist, and the compensation owed when that happens differs from one jurisdiction to the next.
How much land does Aboriginal title actually cover in practice?
In Australia, native title reaches roughly 8.1 million square kilometres, accounting for over half the nation's land and waters as of 2023. By comparison, Indian reserves in Canada span about 28,000 square kilometres, and U.S. Indian reservations cover approximately 227,000 square kilometres.
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