What Is Aboriginal Title?

What Is Aboriginal Title?

Aboriginal title is a common law notion that states that indigenous peoples’ land rights to customary tenure continue when settler colonialism assumes control.

The proof requirements for recognizing aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the event of extinguishment vary greatly by jurisdiction.

Almost all jurisdictions agree that aboriginal title is inalienable and can be held individually or collectively.

Aboriginal title is also known as indigenous title (in Australia), native title (in the United States), and customary title (in New Zealand).

Aboriginal title jurisprudence is related to indigenous rights, influencing and being influenced by non-land issues such as whether the government owes indigenous peoples a fiduciary duty.

While the judge-made doctrine is based on customary international law, it has been codified at the national level through legislation, treaties, and constitutions.

Aboriginal title was first recognized in the early nineteenth century, in cases in which indigenous peoples were not parties.

Significant aboriginal title litigation resulting in indigenous peoples’ victories did not occur until recent decades.

The majority of court cases were heard in Australia, Canada, Malaysia, New Zealand, and the United States. Aboriginal title is a significant area of comparative law, with numerous cases cited as persuasive authority across jurisdictions.

Indigenous land rights are frequently legislated as a result of the recognition of native title.

Facts of Aboriginal Title

  • Only the federal and provincial governments have the authority to violate Aboriginal Title.
  • Surface and subsurface rights are included under Aboriginal Title.
  • Without consultation and compensation, Aboriginal title cannot be extinguished.
  • Only the federal government has the authority to legislate on behalf of First Nations peoples and their territory.
  • Legislation that claims to destroy Aboriginal title must demonstrate a clear and unambiguous desire to do so.

Governments may infringe on Aboriginal title, but only if the infringement is justifiable.

The court will consider consultation with the Indigenous group, the degree of infringement, impacted community membership consent, and whether compensation was given when determining whether the infringement is justified.

Aboriginal title in Canada

According to the Supreme Court of Canada, Aboriginal title is a distinct type of property right. Most importantly, the right has an inherent limit: title lands cannot be used in a way that deprives current and future generations of the right to use the land.

Aboriginal title is also constrained by a ban on alienation, and its origins can be traced back to Aboriginal legal systems that predate and survive the assertion of Crown sovereignty.

Two categories of aboriginal title are recognized in Canada: Common law aboriginal title, which is adequate for most situations, and statutory Aboriginal title.

Aboriginal common law title was the first source of land rights in Canada. Aboriginal customary rights may be more difficult to identify and prove than conventional judgments.

Common law aboriginal title means that the Crown has waived any objections to lands being possessed by the indigenous people in a traditional manner as to not disturb their relationship with the land.

Aboriginal title is introduced in courts by a statement of the claimant to the land, based on a tradition of continuous use and occupancy since time immemorial.

Statute was passed in the late 19th century to support the doctrine.  The statute may simply require an aboriginal group to prove their claim, or prescribe that aboriginal title is extinguished when lands are occupied by settlers.

The courts have had difficulty making out a clear distinction between aboriginal rights, private law rights, and Crown land.

Aboriginal title United States

The United States was the first country to recognize the common law notion of aboriginal title (also known as “original Indian title” or “Indian right of occupancy”).

Aboriginal title is established through actual, continuous, and exclusive usage and occupation for a “long time” by Native American tribes and countries. Individuals may also acquire aboriginal title if their ancestors were individuals.

Unlike in other countries, aboriginal title is not restricted to historical or traditional land usage. Aboriginal title may not be alienated unless to the federal government or with Congress’ assent.

Aboriginal title is separate from the fee simple lands that Native Americans own and occupy under government trust.

The ability of Congress to erase aboriginal title—whether by “buy or conquest” or by a clear statement—is unlimited and unassailable.

Although numerous statutes allow for compensation, such extinguishment is not compensable under the Fifth Amendment.

Unextinguished aboriginal title gives rise to a federal common law cause of action for ejectment or trespass, for which federal subject-matter jurisdiction exists.

Many potentially meritorious tribal claims have been resolved through Congressional legislation that provides for the extinction of aboriginal title as well as monetary compensation or the approval of gaming and gambling companies.

Large-scale compensatory litigation began in the 1940s, followed by possessory action in the 1970s. Possessory claims against the federal government are barred under federal sovereign immunity, although compensating claims are permitted by statute.

Unless the federal government intervenes, the Eleventh Amendment prohibits both possessory and compensating claims against states. In 1985, the United States Supreme Court dismissed practically all legal and equitable affirmative defenses.

However, the Second Circuit, where the majority of remaining possessory claims are pending, has ruled that laches precludes all “disruptive” claims.

Overview of doctrine


The prerequisites for establishing an aboriginal title to land differ per country, but in general, the aboriginal claimant must demonstrate (exclusive) occupation (or possession) from a long time ago, often prior to the declaration of sovereignty, and continuity to the current day.


In any jurisdiction, Aboriginal title does not constitute allodial or radical title. Instead, its meaning is often described as a usufruct, or a right to use, though in reality this might imply anything from a precise right to use land for certain, enumerated purposes to a generic right to use that approximates fee simple.


The general government can extinguish Aboriginal title, but the requirement to do so differs by country. Some argue that the legislation must be explicit in doing so, while others argue that extinguishment can be inferred from the government’s management of the land.

The Crown cannot eliminate aboriginal title in Canada without the explicit prior informed permission of the proper aboriginal title holders. Previously, consent was necessary in New Zealand, but now simply a rationale is required, similar to a public purpose requirement.

Aboriginal title vs fee simple

Aboriginal title, like fee simple, confers exclusive use and occupation of the land. It also gives the party holding the title the ability to select how to utilize the land and to profit economically from its use.

Aboriginal title gives the holder a right to exclusive use and possession of the land, but not all land is susceptible to Aboriginal title. Some land may be unsuitable for occupation, e.g., due to its location or unsuitable environmental conditions.

Aboriginal title does not automatically imply fee simple ownership of all other property being used by the original occupants of the land. However, some jurisdictions only require that continuous occupation be shown, with minimal requirements on duration of use or on ownership before or after occupancy.

Some Indian tribes may be able to use traditional aboriginal title as a basis for fee simple ownership of the land. This is especially possible with organizations like the Confederated Tribes of Grand Ronde.

Rights, privileges and restrictions

The holder of Aboriginal title may have numerous legal protections which may not necessarily be available to holders of other forms of property title.

Aboriginal title holders are entitled to exercise the rights of other owners in the same way that they would a fee simple holder.

This means, for example, that they are entitled to make improvements or cut timber within their property under the same conditions as if they held an interest in fee simple land.

In Canada, Aboriginal title holders have certain Additional Compensation Rights (ACRs) which entitle them to directly receive part of any government grants for use of land through their traditional lands.

These rights are in addition to any other property rights that the Aboriginal title holders may be able to claim.

In most countries, Aboriginal title does not prohibit the government from managing individual tracts of land for public purposes.

The only conflict is if an aboriginal group “owns” a part of the land in question, because they have a right to it even if it is never used by them.


What is Aboriginal title?

Aboriginal title is a type of title to land where the rights of use are claimed by a native tribe or band in a territory.

Most often, this is land that was never ceded to the government or nation from which the tribe derives its aboriginal title, although it can also be land that was originally ceded but for which continued use has been maintained by the legal tribe.

Does Aboriginal title apply in America?

Aboriginal title may not be alienated unless to the federal government or with Congress’ assent. Aboriginal title is separate from the fee simple lands that Native Americans own and occupy under government trust.

Are there any advantages to Aboriginal title?

There may be advantages to aboriginal title such as self-rule, economic independence and environmental protection.

Can Aboriginal title be bought and sold?

Aboriginal titles can only be extinguished by the government of the country in which the land lies. In America, for example, you can no longer buy and sell titles to Native American lands.

The assets of those lands were then liquidated by the United States government and placed in bank accounts which are managed by Native American tribes that claim them.

Which way does the law in Canada go?

In Canada, the government reserves the right to extinguish aboriginal title if it “deemed to be in the public interest”.

Does Canada have a claim against the United States?

Canada does not have a claim against the United States. The Indian Act of 1876 and its subsequent amendments (such as Section 93 of the Indian Act) represent a transfer of legal control of most native peoples’ lands to Canada by means of treaties.

Where does Aboriginal title exist?

Indigenous peoples lived on and governed the territory that became Canada for centuries before Europeans arrived. Aboriginal title refers to their occupation, use, and sovereignty over these lands.

What is the difference between aboriginal rights and Aboriginal title?

Aboriginal rights are the rights of self-government, resources, and economic development which were created by treaties made with native nations in pre-colonial times.

Aboriginal title is a legal designation applied by governments to lands that were occupied by native peoples prior to European contact, and is recognized as an indigenous title.

What makes Aboriginal title different from other types of land tenure?

The difference between aboriginal title and other forms of land titles can be explained through the concept of aboriginal rights. Aboriginal rights include the right of self-government in matters such as governance, resource use, and economic development.

Why is aboriginal title property if it looks like sovereignty?

According to the Supreme Court of Canada, Aboriginal title is a type of property right, albeit a distinct one. Aboriginal title is more equivalent to a right of sovereignty—the authority to enact rules governing the use of a region.

Aboriginal title is the right to make laws over the title lands.

Do Aboriginals believe land ownership?

Native Canadians believe that they have an inherent right to land which ties them to the land and ensures their survival. Also, during the colonization period, aboriginal people were treated as property rather than sovereign people.

What does it mean to have native title to land?

Native title refers to the acknowledgement of Aboriginal and Torres Strait Islander peoples’ rights and interests in land and seas under their customary law and traditions, as spelled forth in Australian law.

Can the Crown infringe Aboriginal rights?

The Court rules that where the Crown contests the existence or scope of Aboriginal rights asserted by an indigenous community, the group does not have to prove the existence of the rights in court in order to safeguard them from invasion or damage.

Is Aboriginal title absolute?

Land held in fee simple is nonetheless held “in tenure on the Crown’s underlying title,” despite being essentially comparable to absolute possession.

Because fee simple ownership is awarded by the Crown, it is dependent on the legitimacy of the Crown’s stake in the land in the first place, as well as any encumbrances.

What is the test for Aboriginal title?

The criteria for Aboriginal title are based on a First Nation’s adequate, continuous, and exclusive possession prior to European dominion and does not exclude nomadic or semi-nomadic people from demonstrating an Aboriginal title claim.

What was the first land claims case thereafter where Aboriginal title was granted?

Calder v British Columbia (AG) [1973] SCR 313, [1973] 4 WWR 1 was a Supreme Court of Canada ruling.

It was the first time in Canadian law that aboriginal title to land existed prior to the continent’s colonization and was not only derived from statutory law.

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