P.G. McHugh, Aboriginal Title. The Modern Jurisprudence of Tribal Land Rights

Abstract

The recognition of aboriginal title � i.e., land rights not derived from the Crown/government but rooted solely in the use and ownership of the land by indigenous peoples since time immemorial �is probably the greatest achievement of indigenous peoples in their decade-long struggle to defend their land and culture. Since indigenous peoples define themselves as a people through their genealogical connection to certain areas, the realization of the right to own, use, and live on their ancestral territories has always been at the centre of their struggle for the recognition and enforcement of their rights. Ownership of and control over their ancestral land and its resources are not only considered a significant contribution to solving the terrible social and economic problems indigenous peoples are facing. A considerable degree of self-management and control over land and natural resources is also regarded as essential to the indigenous peoples� survival as peoples and the preservation of their distinct culture. Yet until the 1970s the rights of indigenous peoples to their ancestral lands were almost completely ignored by states and international law. The loss of indigenous peoples� control of and ownership over these lands during colonization was regarded as a historical and irreversible fact by national governments. When from the 1970s onwards courts in several common law jurisdictions began to hold that the indigenous peoples� customary tenure had indeed survived the acquisition of sovereignty by the Crown and continued to exist as a burden on the Crown�s radical title to the land, the national governments were � after years of inactivity and neglect � finally forced to act and to enter into negotiations with indigenous peoples to settle the indigenous peoples� land claims. In the 1990s, United Nations human rights monitoring bodies and regional human rights courts picked up the aboriginal title idea, thereby �