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Historical Indigenous Peoples' Land Claims: A Comparative and International Approach to the Common Law Doctrine on Indigenous Title


Within common law systems a body of jurisprudence has developed according to which indigenous peoples' land rights have been recognized based upon historical patterns of use and occupancy and corresponding traditional land tenure. Looking at the emerging common law doctrine on aboriginal or native title, this article examines how legal institutions are building a theory on historical land claims through the recognition of indigenous laws deriving from prior occupation. The article analyses how the common law doctrine builds a bridge between past events and contemporary land claims. The aim of this article is to examine to what extent the common law doctrine proposes a potential model for the development of a legal theory on the issue of indigenous peoples' historical land claims. In doing so the article analyses how the common law doctrine compares with international law when dealing with historical arguments by focusing on issues of intertemporal law and extinguishment.

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P Thornberry , Indigenous Peoples and Human Rights (MUP, Manchester, 2002)

P Patton , ‘The Translation of Indigenous Land into Property: The Mere Analogy of English Jurisprudence’ (2000) 6 Parallax 2538.

PG McHugh , Aboriginal Societies and the Common Law (OUP, Oxford, 2004) 539611.

R Bulan , ‘Native Title as a Proprietary Right under the Constitution in Peninsula Malaysia: A Step in the Right Direction?’ (2001) 9 Asia Pacific Law Review 83.

To Elias , ‘The Doctrine of Intertemporal Law’ (1980) 74 AJIL 285.

A Connolly , ‘Judicial Conceptions of tradition in Canadian Aboriginal Rights Law’ (2006) 7 Asia Pacific Journal of Anthropology 27.

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International & Comparative Law Quarterly
  • ISSN: 0020-5893
  • EISSN: 1471-6895
  • URL: /core/journals/international-and-comparative-law-quarterly
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