Native Title | Indigenous People’s Right to Land

Native title

Native Title is the right rooted in the traditional laws and customs of an indigenous people (Aboriginal or First People) to the possession, enjoyment and use of land and waters and as a result a right that is recognized by common law in native title . This right (although referred to by different names) is recognised in all countries where land was taken by the British in the name of the Crown but, at the outset, without any proper recognition of the rights of the existing population.

This right is not an

absolute form of private property,Native Title

but is a qualified dominion based on prior use and possession of the land. Native Title is dependent on the indegenous occupier’s right to continue the exclusive enjoyment of their land “in their own way or for their own purpose”, Mitchell v. United States, 9 Pet 711, 34 US 711, 746 9 L Ed 283, 296 (1835). A right that survives the acquisition of sovereignty by a State or Crown, and is not lost without a clear and unambiguous declaration of such an intention (In re Southern Rhodesia [1991] AC 211, 233 (PC)). A right to the usufruct and habitation of the land as a spiritual right thereto, but not a right that can be alienated, except to other members or trustees of the same peoples. A right that cannot be alienated to anyone other than a local native or group of native and cannot be taken by the government without compensation, although it may be considered subservient to the right of the State (or Crown), whose rights may in turn be based on conquest, treaty or discovery (Attorney General (NSW) v Brown (1847) 1 Legge 312; Tee-Hit-Ton Indians v. United States, 348 US 272, 99 L Ed 314, 75 S Ct 313 (1955); Oyekan v Adele (1957) 2 All ER 785 (PC)).  … [More]

Native Title provides that all members of the community have equal rights to the land, although in many cases the Chief or Head of the tribe or society has charge over the use of the land and in some cases is loosely referred to as the ‘owner’ or ‘trustee’ of the land. An individual may have rights to cultivate part of the land, but has no right to transfer that right, which always remains vested in the community. “What is this you call property. It cannot be the earth, for the land is our mother, norishing all our children, beasts, birds, fish and all men. The woods, the streams, everything on it belongs to everybody and is for the use of all. How can one man say it belongs only to him”, Massasoit, a leader of the Wanpanoag tribe addressing the Plymouth colonists in 1620s (Andro Linklater, Measuring America: How the United States was Shaped by the Greatest Land Sale in History (New York: 2003), p. 28).

During the colonial period of settlement, some of the ‘discovered’ land was considered terra nullius (land belonging to no-one). Under the principles of the common law of England, if such land was ‘deserted and uncultivated’, it could be peopled from a “mother country” (1 Bl Comm 106). (This ‘right’ is derived primarily from the theory propounded by John Locke (1632-1704) that the most absolute property is one’s labour and that by applying effort, as by improving land, an individual acquires a right of ownership that should be protected by law, i.e. a right to private property.) On the other hand, a claim of sovereignty over a land does not unequivocally carry an absolute right of ownership, and “a mere change in sovereignty is not to be presumed to disturb rights of private owners”, Amodu Tijani v The Secretary, Southern Nigeria [1921] 2 AC 399, 407 (PC) (United States v. Percheman, 7 Pet 51, 32 US 51, 87, 8 L Ed 604 (1833)). However, there arose a conflict between those who claimed sovereignty and considered that any land that was empty (or uncultivated and unimproved) was theirs as of right, and those who were living on the ‘discovered’ land and did not acknowledge any such claims to their lands. This conflict was exacerbated by the English view that land could not be owned as private property, unless it was marked off and cultivated—made by improvement. A view expounded by John Winthrop, Governor of the Massachusetts Bay Company, with the words “as for the natiues of new England, they inclose no Land, neither haue any settled habytation, nor any tame Cattle to proue the Land by”, The Journal of John Winthrop, 1630–1649.

In the lands that became the United States, the original inhabitants were admitted to be the rightful occupants of the soil “with legal as well as just claim to retain possession of it”, Johnson v. M’Intosh, 8 Wheat 543, 21 US 543, 574, 5 L Ed 681, 688 (1823), but this right was “necessarily, to considerable extent, impaired”, supra at 591, 693. This impairment was a recognition of the right of the discoverer and conqueror “to appropriate to themselves so much of [North America] as they could respectively acquire” and this right was based on the principle that “discovery gave exclusive title to those who made it”, supra at 572, 688. The right cannot be passed to another and the United States has the “exclusive right to extinguish the Indian Title of occupancy, by purchase or conquest”, supra at 587, 692. &hellip  [Read More about Native Title]

Native Title In Canada,

the First Nations have a relationship with the land; a connection to ‘Mother Earth’. Under common law their right to be on the land is not considered as a form of ownership, or as an exclusive right to land. &hellip [Read more about Native Title].

Native Title In Australia,

the Commonwealth passed the Aboriginal Land Rights (Northern Territory) Act 1976 to provide a statutory scheme for the transfer of land to aboriginal people. &hellip.

In the ground-breaking case of Mabo v Queensland (No 2) (1992) 175 CLR 1, 57, 107 ALR 1, ‘native title’ was said to “conveniently describe the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants”. …

Native title does not override the Crown’s title to land or the right to land where the Crown holds a reversionary right, as when it has granted a lease to another. However, it may be dominant when a mere pastoral lease has been granted by the Crown, without the essential grant of exclusive possession that is required for a true lease (Wik Peoples v Queensland (1996) 187 CLR 1, 122 (Aus HC)). Perhaps it is best described as “an accumulation of rights, in which the unifying notion of title plays a weak and uncertain role”, S. Brennan, Native Title in the High Court of Australia after Mabo (2003) 14 Public Law Review 209. … [Read More about Native Title]

Land in New Zealand is now held as Crown land; General land; Maori customary land (which overlies the Crown’s radical title, but cannot be alienated except to the Crown—few such areas now subsist); Maori freehold land (where the customary interest has been converted to fee simple—many of such lands are held in multiple ownership as tenancies in common); General land owned by Maori (freehold land with more than four owners, the majority of whom are Maori); and Crown land reserved for Maori (Te Ture Whenua Maori/Maori Land Act 1993, s. 129 (NZ)). Customary land and Maori freehold land are legally termed ‘Maori land’.

Bibliographical references, Native Title:

R.A. Simons et al (eds.). Indigenous People and Real Estate Valuation. New York, NY: 2008.

R. Miller et al. Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (New York & Oxford: 2010).

Australian Government Solicitor. Native Title: Legislation with Commentary by the Australian Government Solicitor (1998).
A.J. Bradbrook et al. Australian Property Law: Cases and Materials (4th ed. Pyrmont, NSW: 2011), Ch. 7 ‘Public Lands and Land Rights of Indigenous People’.
P. Butt. Land Law [Australia] (6th ed. Pyrmont, NSW: 2010), Ch. 25 ‘Native Title’.
S. Hepburn. Australian Property Law: Cases, Materials and Analysis (2nd ed. Chatsworth, NSW: 2012), Ch. 8 ‘Native Title’.
E. Webb & M. Stephenson. Land Law (3rd ed. Chatsworth, NSW: 2009), Ch. 4 ‘Native Title’.
R.H. Bartlett. Native Title in Australia (2nd ed. North Ryde, NSW: 2004).
A.J. Bradbrook et al. Australian Real Property Law (4th ed. Pyrmont, NSW: 2007), Ch. 6 ‘Land Rights of Indigenous Persons’.
M. Perry & S. Lloyd. Australian Native Title Law (Sydney: 2003).
Sackville and Neave Property Law: Cases and Materials (8th ed. Sydney: 2008), Ch. 5 ‘Systematic fragmentation of interests in land: the common law, tenure and native title’.
1(2) Halsbury’s Laws of Australia, Aboriginals and Torres Strait Islanders, §§ [5–5000]—[5–5090].

M. McCallum & A.M. Sinclair. Introduction to Real Property [Canada] (5th ed. Markham, ON: 2005), Ch. 6 ‘First Nations Rights in Land and Natural Resources’.
B. Clark. Indian Title in Canada (Toronto: 1987).

T. Bennion et al. New Zealand Land Law (2nd ed. Wellington: 2005), Ch. 5 ‘Maori Land’.
R. Boast et al. Maori Land Law (Wellington: 1999).

K. McNeil. Common Law Aboriginal Title (Oxford: 1989).
R. Melville. An Overview of Aboriginal and Treaty Rights and Compensation for their Breach (Saskatoon, Sask.: 2001).

Note (Native Title):

  • Cases & Bibliographical References in italics are from the UK or other common law countries (as indicated); other references are from the USA.
  • Subscribe before July 31 and get a FREE copy of The Shorter Encyclopedia of Real Estate Terms.

Terms in bold, including Native Title, Aboriginal Title, Maori Customary Lands, and rights of First People to Land, are defined and explained in detail in our Encyclopedia of Real Estate Terms , Third Edition; as well as in Real Estate Defined.

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