Land rights

Land rights are those property rights that pertain to real estate land.

Because land is a limited resource and property rights include the right to exclude others, land rights are a form of monopoly. Those without land rights must enter into land use agreements, since they must reside somewhere. In western culture, land rights are derived from the sovereign; thus, a land value tax is sometimes referred to as rent.

Land rights can also refer to encumbrances on for example, the right of access.

Land registration provides one mechanism for land rights to be regulated.

Indigenous land rights

Land rights and related resource rights are of fundamental importance to the world's indigenous peoples for a range of reasons, including: the religious significance of the land, self-determination, identity and economics.

Aboriginal land claims are claims by indigenous peoples about their ownership of land before the arrival of settlers, primarily Europeans. The history of colonisation has led to a variety of arrangements.

Treaties establishing rights were signed between colonisers and indigenous peoples in New Zealand (the Treaty of Waitangi), and in many parts of North America

In other places gaining recognition of indigenous land rights has required political action and or action in the courts.

The process of colonisation displaced many indigenous peoples from their traditional lands. These people may not have the ability to claim indigenous land rights as their relationship with the land is not seen as continuous.

Aboriginal title

Aboriginal title is a common law property interest in land. The requirements for establishing an aboriginal title to the land vary by jurisdiction, but generally speaking, the aboriginal claimant must establish (exclusive) occupation from a long time ago, i.e. before the assertion of sovereignty, and continuity to the present day.

Aboriginal title can be extinguished by the government, with different processes to do this in different jurisdictions. 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.

Australia

The foundational case for aboriginal title in Australia is "Mabo (no. 2)". Before Mabo, land rights for Indigenous Australians living in the Northern Territory were granted under the Aboriginal Land Rights (Northern Territory) Act 1976.

Following the Mabo decision, Native title is a recognition in the law of Australia of the continued ownership of land by local Indigenous Australians.

Native title can coexist with non-indigenous proprietary rights and in some cases different indigenous groups can exercise their native title over the same land. It is also an example of two distinct systems of law operating within the same geographic, national and jurisdictional space. It is a recognition by the common law of customary Aboriginal law.

The National Native Title Tribunal (NNTT) is the body that investigates and mediates claims made by Aboriginal and Torres Strait Islander peoples. Native title determinations are made by the Federal Court of Australia. Appeals against these determinations can be made to a full sitting of the Federal Court and then to the High Court of Australia. The National Native Title Register (NNTR) is a register of approved determinations and is maintained by the NNTT.

Canada

The leading case for aboriginal title in Canada is "Delgamuukw v. British Columbia".

New Zealand

In New Zealand a permanent commission of inquiry called the Waitangi Tribunal was established by an Act of Parliament in 1975. It is charged with investigating and making recommendations on claims brought by indigenous Māori relating to actions or omissions of the Crown, in the period since 1840, that breach the promises made in the Treaty of Waitangi. The Treaty was designed by the former ruling colonists to give credence to Aotearoa becoming a British colony, was signed in 1840 between representatives of the British Crown and Maori chiefs of the North Island. Many aboriginal land claims have been settled through this tribunal process, with crown land being either returned to its original Maori owners or compensation paid by the New Zealand Government.

United States of America

The concept of aboriginal title was first promulgated in the United States Supreme Court decision of Johnson v. McIntosh (1823). This decision changed the existing legal norm that the right of discovery by a European nation-state secured an exclusive right to treat with the Indigenous Peoples. The decision, authored by Chief Justice Marshall (see also Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832)) established the notion that legal title could only rest with the discoverer and that the Indian Nations has a right of use and occupance as an encumbrance on the discovering nation-state legal title.

Footnotes

Further reading

*Robertson, L.G., (2005), "Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands", Oxford University Press, New York ISBN 019514869X

See also

*Claim club
*Countryside and Rights of Way Act 2000 (in the UK)
*Land grant
*Mineral rights
*Squatter
*Usufruct
*Water rights
*Revised statute 2477

Indigenous land rights

*Aboriginal land claims
*Collective rights
*Commons
*Crown land (see "logging and mineral rights" under Canada)
*Unceded territory
*Indigenous Australians
**Native title and
*Māori, Aotearoa / New Zealand
**Treaty of Waitangi
**Eva Rickard
**Māori protest movement#Land
*Indigenous peoples of the Americas
**Native Americans in the United States
***Indian reservation, land which is managed by a Native American tribe under the United States Department of the Interior's Bureau of Indian Affairs.
***Oren Lyons
**Aboriginal peoples in Canada
**Delgamuukw v. British Columbia
*Mesoamerica
*Terra nullius


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