The jurisprudential basis to the common law notion of Indigenous title: Some comparisons

Abstract

Abstract Indigenous title is a unique form of land ownership whereby settlers who occupy land previously inhabited by Indigenous people recognize within their set of laws a legal right possessed by Indigenous people to own their ancestral land. In this paper I examine three jurisprudential criteria by which Indigenous title can be identified: the first based on traditional law or custom, the second on exclusive occupation of the land, and the third on intensive use of the land. Finding flaws with the first two criteria, I argue for a juridical approach to Indigenous title that emphasizes intensive use.