Protests against the Foreshore and Seabed Act 2004, which extinguished claims to aboriginal title to the foreshore and seabeds in New Zealand

Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal title, the content of aboriginal title, the methods of extinguishing aboriginal title, and the availability of compensation in the case of extinguishment vary significantly by jurisdiction. Nearly all jurisdictions are in agreement that aboriginal title is inalienable, except to the national government, and that it may be held either individually or collectively.

Aboriginal title was first acknowledged in the early 19th century, in decisions in which indigenous peoples were not a party. Significant aboriginal title litigation resulting in victories for indigenous peoples did not arise until recent decades. The majority of court cases have been litigated in Australia, Canada, Malaysia, New Zealand, and the United States. Aboriginal title is an important area of comparative law, with many cases being cited as persuasive authority across jurisdictions. Many commentators believe that the doctrine is applicable in all common law legal systems.

Aboriginal title is also referred to as indigenous title, native title (particularly in Australia), original Indian title (particularly in the United States), and customary title (particularly in New Zealand). Aboriginal title jurisprudence is related to indigenous rights, influencing and influenced by non-land issues, such as whether the government owes a fiduciary duty to indigenous peoples. While the judge-made doctrine arises from customary international law, it has been codified nationally by legislation, treaties, and constitutions.

English colonial legacy[link]

The Mohegan Sun casino commemorates the site of the world's first common law indigenous land rights case.

Aboriginal title arose at the intersection of three common law doctrines articulated by the Judicial Committee of the Privy Council: the Act of State doctrine, Doctrine of Continuity, and the Recognition Doctrine.^[1] The Act of State doctrine held that the Crown could confiscate or extinguish real or personal property rights in the process of conquering, without scrutiny from any British court, but could not perpetrate an Act of State against its own subjects.^[1] The Doctrine of Continuity presumed that the Crown did not intend to extinguish private property upon acquiring sovereignty, and thus that pre-existing interests were enforceable under British law.^[1] Its mirror was the Recognition Doctrine, which held that private property rights were presumed to be extinguished in the absence of explicit recognition.^[1]

In the same year in which the Doctrine of Continuity emerged,^[2][3] Edward Coke delivered a famous dictum in Calvin’s Case (1608) that the laws of all non-Christians would be abrogated upon their conquest.^[4] Coke's view was not put into practice, but was rejected by Lord Mansfield in 1774.^[5] The two doctrines were reconciled, with the Doctrine of Continuity prevailing in nearly all situations (except, for example, public property of the predecessor state) in Oyekan v Adele (1957).^[6]

The first Indigenous land rights case under the common law, Mohegan Indians v. Connecticut, was litigated from 1705 to 1773, with the Privy Council affirming without opinion the judgement of a non-judicial tribunal.^{[7][n 1]} Other important Privy Council decisions include In re Southern Rhodesia (1919)^[8] and Amodu Tijani v. Southern Nigeria (Secretary) (1921).^[9] The former rejected a claim for aboriginal title, noting that: "Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged."^[10] Just two years later, Amodu Tijani laid the basis for several elements of the modern aboriginal title doctrine, upholding a customary land claim and urging the need to "study of the history of the particular community and its usages in each case."^[9] Subsequently, the Privy Council issued many opinions confirming the existence of aboriginal title, and upholding customary land claims.^{[11][12][13][14][15][16][17]} Modern decisions have heaped criticism upon the views expressed in Southern Rhodesia.^[18]

Doctrinal overview[link]

Recognition[link]

The requirements for establishing an aboriginal title to the land vary across countries, but generally speaking, the aboriginal claimant must establish (exclusive) occupation (or possession) from a long time ago, generally before the assertion of sovereignty, and continuity to the present day.

Content[link]

Aboriginal title does not constitute allodial title or radical title in any jurisdiction. Instead, its content is generally described as a usufruct, i.e. a right to use, although in practice this may mean anything from a right to use land for specific, enumerated purposes, or a general right to use which approximate fee simple.

It is common ground among the relevant jurisdictions that aboriginal title is inalienable, except to the federal government ("the Crown"), although Malaysia allows aboriginal title to be sold between indigenous peoples, unless contrary to customary law. Especially in Australia, the content of aboriginal title varies with the degree to which claimants are able to satisfy the standard of proof for recognition. In particular, the content of aboriginal title may be tied to the traditions and customs of the indigenous peoples, and only accommodate growth and change to a limited extent.

Extinguishment[link]

Aboriginal title can be extinguished by the Crown, but again, the requirement to do this varies by country. Some require the legislature to be explicit when it does this, others hold that extinguishment can be inferred from the government's treatment of the land. In Canada, the Crown cannot extinguish aboriginal title without the explicit prior informed consent of the proper aboriginal title holders. New Zealand formerly required consent, but today requires only a justification, akin to a public purpose requirement.

Jurisdictions differ on whether the state is required to pay compensation upon extinguishing aboriginal title. Theories for the payment of compensation include the right to property, as protected by constitutional or common law, and the breach of a fiduciary duty.

History by jurisdiction[link]

Australia[link]

Australia did not experience native title litigation until the 1970s, when Indigenous Australians (both Australian Aborigines and Torres Strait Islanders) became more politically active.^{[n 2]} In 1971, Blackburn J. of the Supreme Court of the Northern Territory rejected the concept in Milirrpum v Nabalco Pty Ltd (the "Gove land rights case").^[19] The Aboriginal Land Rights Commission was established in 1973 in the wake of Milirrpum. Paul Coe, in Coe v Commonwealth (1979), attempted (unsuccessfully) to bring a class action on behalf of all Aborigines claiming all of Australia.^[20] The Aboriginal Land Rights Act 1976 established a statutory procedure that returned approximately 40% of the Northern Territory to Aboriginal ownership; the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 had a similar effect in South Australia.

The High Court of Australia, after paving the way by striking down a State statute under the Racial Discrimination Act 1975,^[21] overruled Milirrpum in Mabo v Queensland (No 2) (1992).^[22] Mabo, rejecting terra nullius, held that native title exists (6-1) and is extinguishable by the sovereign (7-0), without compensation (4-3). In the wake of the decision, the Australian Parliament passed the Native Title Act 1993 (NTA), codifying the doctrine and establishing the National Native Title Tribunal (NNTT). Western Australia v Commonwealth (1995) upheld the NTA and struck down a conflicting Western Australia statute.^[23]

In 1996, the High Court held that pastoral leases, which cover nearly half of Australia, do not extinguish native title in Wik Peoples v Queensland.^[24] In response, Parliament passed the Native Title Amendment Act 1998 (the "Ten Point Plan"), extinguishing a variety of Aboriginal land rights and giving state governments the ability to follow suit.

Western Australia v Ward (2002) held that native title is a bundle of rights, which may be extinguished one by one, for example, by a mining lease.^[25] Yorta Yorta v Victoria (2002), an appeal from the first native title claim to go to trial since the Native Title Act, adopted strict requirements of continuity of traditional laws and customs for native title claims to succeed.^[26]

Belize[link]

In A.-G. for British Honduras v. Bristowe (1880), the Privy Council held that the property rights of British subjects who had been living in Belize under Spanish rule with limited property rights, were enforceable against the Crown, and had been upgraded to fee simple during the gap between Spanish and British sovereignty.^[27] This decision did not involve indigenous peoples, but was an important example of the key doctrines that underlie aboriginal title.^[28]

In 1996, the Toledo Maya Cultural Council (TMCC) and the Toledo Alcaldes Association (TAA) filed a claim against the government of Belize in the Belize Supreme Court, but the Court failed to act on the claim.^[29] The Maya peoples of the Toledo District filed a complaint with the Inter-American Commission on Human Rights, which sided with the Maya in 2004 and stated that the failure of the government of Belize to demarcate and title the Maya cultural lands was a violation of the right to property in Article XXIII of the American Declaration.^[30] In 2007, Chief Justice Abdulai Conteh ruled in favor of the Maya communities of Conejo and Santa Cruz, citing the IACHR judgement and key precedents from other common law jurisdictions.^[29] The government entered into negotiations with the Maya communities, but ultimately refused to enforce the judgement.

In 2008, The TMCC and TAA, and many individual alcades, filed a representative action on behalf of all the Maya communities of the Toledo District, and on June 28, 2010, CJ Conteh ruled in favor of the claimants, declaring that Maya customary land tenure exists in all the Maya villages of the Toledo District, and gives rise to collective and individual property rights under sections 3(d) and 17 of the Belize Constitution.^[31]

Botswana[link]

A Botswana High Court recognized aboriginal title in Sesana and Others v Attorney General (2006), a case brought by named plaintiff Roy Sesana, which held that the San have the right to reside in the Central Kalahari Game Reserve (CKGR), which was violated by their 2001 eviction.^[32] The decision quoted Mabo and other international case law, and based the right on the San's occupation of their traditional lands from time immemorial. The court described the right as a "right to use and occupy the lands" rather than a right of ownership. The government has interpreted the ruling very narrowly and has allowed only a small number of San to re-enter the CKGR.

Canada[link]

Aboriginal title has existed in Canada since the Privy Council, in St. Catherines Milling v. The Queen (1888), characterized it as a personal usufruct at the pleasure of the Queen.^[33] This case did not involve indigenous parties, but rather was a lumber dispute between the provincial government of Ontario and the federal government of Canada. St. Catherines was decided in the wake of the Indian Act (1876), which laid out an assimilationist policy towards the aboriginal peoples in Canada (First Nations, Inuit, and Métis), allowed provinces to abrogate treaties (until 1951), and made it a federal crime to prosecute First Nation claims in court, raise money, or organize to pursue such claims.^[34]

St. Catherines was more or less the prevailing law until Calder v. British Columbia (Attorney General) (1973). All seven of the judges in Calder agreed that the claimed aboriginal title existed, and did not solely depend upon the Royal Proclamation of 1763.^[35] Six of the judges split 3-3 on the question of whether aboriginal title had been extinguished. The Nisga'a did not prevail because the seventh justice, Pigeon J, found that the Court did not have jurisdiction to make a declaration in favour of the Nisga'a in the absence of a fiat of the Lieutenant-Governor of B.C. permitting suit against the provincial government.

Section 91(24) of the Constitution Act, 1867 ("British North America Act 1867") gives the federal government exclusive jurisdiction over First Nations, and thus the exclusive ability to extinguish aboriginal title. Section Thirty-five of the Constitution Act, 1982 explicitly recognized and preserved aboriginal rights. R. v. Guerin (1982), the first Supreme Court of Canada decision handed down after the Constitution Act 1982, declared that aboriginal title was sui generis and that the federal government has a fiduciary duty to preserve it.^[36] R. v. Simon (1985) overruled R. v. Syliboy (1929)^[37] which had held that aboriginal peoples had no capacity to enter into treaties, and thus that the Numbered Treaties were void.^[38] A variety of non-land rights cases, anchored on the Constitution Act 1982, have also been influential.^{[39][40][41][42][43][44]}

Delgamuukw v. British Columbia (1997) laid down the essentials of the current test to prove aboriginal title: "in order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive."^{[45][46][47][48][49][50]}

Subsequent decisions have drawn on the fiduciary duty to limit the ways in which the Crown can extinguish aboriginal title,^[51] and to require prior consultation where the government has knowledge of a credible, but yet unproven, claim to aboriginal title.^[52][53]

Malaysia[link]

Malaysia recognized various statutory rights related to native customary laws ("adat") before its courts acknowledged the independent existence of common law aboriginal title. Native Customary Rights (NCR) and Native Customary Land (NCL) are provided for under section 4(2) of the National Land Code 1965, the Sarawak Land Code 1957, the respective provisions of the National Land Code (Penang and Malacca Titles) Act 1963, and the Customary Tenure Enactment (FMS).^[54] Rajah’s Order IX of 1875 recognized aboriginal title by providing for its extinguishment where cleared land was abandoned. Rajah’s Order VIII of 1920 ("Land Order 1920") divided "State Lands" into four categories, one of them being "native holdings," and provided for the registration of customary holdings. The Aboriginal People’s Act 1954 creates aboriginal areas and reserves, also providing for state acquisition of land without compensation. Article 160 of the Federal Constitution declares that custom has the force of law.

Malaysian court decisions from the 1950s on have held that customary lands were inalienable.^{[55][56][57][58][59]} In the 1970s, aboriginal rights were declared to be property rights, as protected by the Federal Constitution.^[60] Decisions in the 1970s and 1980s blocked state-sanctioned logging on customary land.^[61][62]

In 1997, Mokhtar Sidin JCA of the Jahore High Court became the first Malaysian judge to acknowledge common law aboriginal title in Adong bin Kuwau v. Kerajaan Negeri Johor.^[63] The High Court cited the Federal Constitution and the Aboriginal Peoples Act, as well as decisions from the Privy Council, Australia, Canada, New Zealand, and the United States. That case was the first time where Orang Asli directly and expressly challenged a state taking of their land. The opinion held that: "the aborigines' common law rights include, inter alia, the right to live on their land as their forefathers had lived." The case was upheld on appeal, but the Federal Court did not write an opinion.^[64]

Later High Court and Court of Appeal decisions built upon the foundation of Adong bin Kuwau.^{[65][66][67][68][69][70][71]} However, the ability for indigenous peoples to bring such suits was seriously limited by a 2005 ruling that claims must be brought under O. 53 RHC, rather than the representative action provision.^[72]

In 2007, the Federal Court of Malaysia wrote an opinion endorsing common law aboriginal title for the first time in Superintendent of Lands v. Madeli bin Salleh.^[73] The Federal Court endorsed Mabo and Calder, stating that "the proposition of law as enunciated in these two cases reflected the common law position with regard to native titles throughout the Commonwealth."^[74] The High Court of Kuching held in 2010, for the first time, that NCL may be transferred for consideration between members of the same community, as long as such transfers are not contrary to customary law.^[75]

New Zealand[link]

The Treaty of Waitangi (1840)

New Zealand was the second jurisdiction in the world to recognize aboriginal title, but a slew of extinguishing legislation (beginning with the New Zealand land confiscations) has left the Māori with little to claim except for river beds, lake beds, and the foreshore and seabed. In 1847, in a decision that was not appealed to the Privy Council, the Supreme Court of the colony of New Zealand recognized aboriginal title in R. v Symonds.^[76] The decision was based on common law and the Treaty of Waitangi (1840). Chapman J went farther than any judge—before or since—in declaring that aboriginal title "cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers".^[77]

The New Zealand Parliament responded with the Maori Lands Act 1862 and the Native Rights Act 1865 which established the Native Land Court (today the Māori Land Court) to hear aboriginal title claims, and—if proven—convert them into freehold interests that could be sold to Pākehā. That court created the "1840 rule," which converted Māori interests into fee simple if they were sufficiently in existence in 1840, or else disregarded them.^[78][79] Symonds remained the guiding principle,^[80] until Wi Parata v the Bishop of Wellington (1877).^[81] Wi Parata undid Symonds, advocating the doctrine of terra nullius and declaring the Treaty of Waitangi unenforceable.

The Privy Council disagreed in Nireaha Tamaki v. Baker,^[82] and other rulings,^[83][84] but courts in New Zealand continued to hand down decisions materially similar to Wi Parata.^[85] The Coal Mines Amendment Act 1903^{[n 3]} and the Native Land Act 1909 declared aboriginal title unenforceable against the Crown. Eventually, the Privy Council acquiesced to the view that the Treaty was non-justiciable.^[86]

Favorable court decisions turned aboriginal title litigation towards the lake beds,^[87][88] but the Māori were unsuccessful in claiming the rivers^[89] the beaches,^[90] and customary fishing rights on the foreshore.^[91] The Limitation Act 1950 established a 12 year statute of limitations for aboriginal title claims (6 years for damages), and the Maori Affairs Act 1953 prevented the enforcement of customary tenure against the Crown. The Treaty of Waitangi Act 1975 created the Waitangi Tribunal to issue non-binding decisions, concerning alleged breaches of the Treaty, and facilitate settlements.

Te Weehi v Regional Fisheries Office (1986) was the first modern case to recognize an aboriginal title claim in a New Zealand court since Wi Parata, granting non-exclusive customary fishing rights.^[92] The Court cited the writings of Dr Paul McHugh and indicated that whilst the Treaty of Waitangi confirmed those property rights, their legal foundation was the common law principle of continuity. The Crown did not appeal Te Weehi which was regarded as the motivation for Crown settlement of the sea fisheries claims (1992). Subsequent cases began meanwhile - and apart from the common law doctrine - to rehabilitate the Treaty of Waitangi, declaring it the "fabric of New Zealand society" and thus relevant even to legislation of general applicability.^[93] New Zealand Maori Council v Attorney-General held that the government owed a duty analogous to a fiduciary duty toward the Māori.^[94][95] This cleared the way for a variety of Treaty-based non-land Māori customary rights.^[96][97][98] By this time the Waitangi Tribunal in its Muriwhenua Fishing Report (1988) was describing Treaty-based and common law aboriginal title derived rights as complementary and having an 'aura' of their own.

Circa the Te Ture Whenua Māori Act 1993, less than 5% of New Zealand was held as Māori customary land. In 2002, the Privy Council confirmed that the Maori Land Court, which does not have judicial review jurisdiction, was the exclusive forum for territorial aboriginal title claims (ie those equivalent to a customary title claim)^[99] In 2003, Attorney-General v Ngati Apa overruled In re Ninety Mile Beach and Wi Parata, declaring that Māori could bring claims to the foreshore in Land Court.^[100][101] The Court also indicated that customary aboriginal title interests (non-territorial) might also remain around the coastline. The Foreshore and Seabed Act 2004 extinguished those rights before any lower court could hear a claim to either territorial customary title (the Maori Land Court) or non-territorial customary rights (the High Court's inherent common law jurisdiction). That legislation has been condemned by the Committee on the Elimination of Racial Discrimination. The 2004 Act was repealed with the passage of the Marine and Coastal Area (Takutai Moana) Act 2011.

Papua New Guinea[link]

The High Court of Australia, which had appellate jurisdiction before 1975, recognized aboriginal title in Papua New Guinea—decades before it did so in Australia—in Geita Sebea v Territory of Papua (1941),^[102] Administration of Papua and New Guinea v Daera Guba (1973) (the "Newtown case"),^[103] and other cases.^[104][105] The Supreme Court of Papua New Guinea followed suit.^{[106][107][108][109][110]}

Schedule 2 of the Constitution of Papua New Guinea recognizes customary land tenure, and 97% of the land in the country remains unalienated.

South Africa[link]

The Richtersveld desert

The Constitutional Court of South Africa recognized aboriginal title in Alexkor v Richtersveld Community (2003), a suit under the Restitution of Land Rights Act 1994.^[111] The Land Claims Court had dismissed the complaint of the Richtersveld peoples, whose land was seized by a government owned diamond mining operation.^[112] The Supreme Court of Appeal disagreed, citing Mabo and Yorta Yorta, but held that the aboriginal title had been extinguished.^[113] Whether the precedent will be the start of further land rights claims by indigenous peoples is an open question, given the cut-off date of 1913 in the Restitution Act.^{[114][115][116]}

Tanzania[link]

In 1976, the Barabaig people challenged their eviction from the Hanang District of the Manyara Region, due to the government's decision to grow wheat in the region, funded by the Canadian Food Aid Programme.^[117][118] The wheat program would later become the National Agricultural and Food Corporation (NAFCO). NAFCO would lose a different suit to the Mulbadaw Village Council in 1981, which upheld customary land rights.^[119] The Court of Appeal of Tanzania overturned the judgement in 1985, without reversing the doctrine of aboriginal title, holding that the specific claimants had not proved that they were native.^[120] The Extinction of Customary Land Right Order 1987,^[121] which purported to extinguish Barabaig customary rights, was declared null and void that year.^[122]

The Court of Appeal delivered a decision in 1994 that sided with the aboriginal title claimant on nearly all issues, but ultimately ruled against them, holding that the Constitution (Consequential, Transitional and Temporary Provisions) Act, 1984—which rendered the constitutional right to property enforceable in court—was not retroactive.^[123] In 1999, the Maasai were awarded monetary compensation and alternative land by the Court of Appeal due to their eviction from the Mkomazi Game Reserve when a foreign investor started a rhino farm.^[124] The government has yet to comply with the ruling.

United States[link]

The United States, under the tenure of Chief Justice John Marshall, became the first jurisdiction in the world to judicially acknowledge (in dicta) the existence of aboriginal title in series of key decisions. Marshall envisioned a usufruct, whose content was limited only by "their own discretion," inalienable except to the federal government, and extinguishable only by the federal government.^[125] Early state court decisions also presumed the existence of some form of aboriginal title.^[126][127]

Later cases established that aboriginal title could be terminated only by the "clear and plain intention" of the federal government, a test that has been adopted by most other jurisdictions.^[128] The federal government was found to owe a fiduciary duty to the holders of aboriginal title, but such duty did not become enforceable until the late-20th century.^{[129][130][131]}

Although the property right itself is not created by statute, sovereign immunity barred the enforcement of aboriginal title until the passage of the Indian Claims Commission Act of 1946,^[132] which created the Indian Claims Commission (succeeded by the United States Court of Claims in 1978, and later the United States Court of Federal Claims in 1982). These bodies have no authority to title land, only to pay compensation. United States v. Alcea Band of Tillamooks (1946) was the first ever judicial compensation for a taking of Indian lands unrecognized by a specific treaty obligation.^[133] Tee-Hit-Ton Indians v. United States (1955) established that the extinguishment of aboriginal title was not a "taking" within the meaning of the Fifth Amendment.^[134] On the strength of this precedent, claimants in the Court of Federal Claims have been denied interest—which otherwise would be payable under Fifth Amendment jurisprudence—totalling billions of dollars ($9 billion alone, as estimated by a footnote in Tee-Hit-Ton, in interest for claims then pending based on existing jurisdictional statutes).^[135]

Unlike Australia, Canada, and New Zealand, the United States allows aboriginal title to be created post-sovereignty; rather than existing since pre-sovereignty, aboriginal title need only have existed for a "long time" (as little as 30 years) to be compensable.^[136]

Jurisdictions rejecting the doctrine[link]

Some of the Bounty mutineers landed on the Pitcairn Islands, hundreds of years after archaeologists estimate the original Polynesian inhabitants departed.

There is no possibility for aboriginal title litigation in some Commonwealth jurisdictions; Barbados and Pitcairn Islands were uninhabited for hundreds of years prior to colonization, although they had previously been inhabited by Arawaks and Caribs, and Polynesians, respectively.^[137]

India[link]

Unlike most jurisdictions, the doctrine that aboriginal title is inalienable never took hold in India, and sales from indigenous persons to both British subjects and aliens were widely upheld.^[138] The Pratt-Yorke opinion (1757), a joint opinion of England's Attorney-General and Solicitor-General, declared that land purchases by the British East India Company from the Princely states were valid even without a crown patent authorizing the purchase.

In a 1924 appeal from India, the Privy Council issued an opinion that largely corresponded to the Continuity Doctrine: Vaje Singji Jorava Ssingji v Secretary of State for India.^[139] This line of reasoning was adopted by the Supreme Court of India in a line of decisions, originating with the proprietary claims of the former rulers of the Princely states, as well as their heirs and assigns.^{[140][141][142][143]} Adivasi land rights litigation has yielded little effect, and most Adivasi live in state-owned forests.

Notes[link]

References[link]

Further reading[link]

Comparative

• Bartlett, Richard H., and Jill Milroy (eds.). 1999. Native Title Claims in Canada and Australia: Delgamuukw and Miriuwung Gajerrong.
• Richard A. Epstein, Property Rights Claims of Indigenous Populations: The View from the Common Law, 31 U. Toledo L. Rev. 1 (1999).
• Hazelhurst, Kayleen M. (ed.). 1995. Legal Pluralism and the Colonial Legacy.
• Hocking, Barbara Ann. 2005. Unfinished constitutional business?: rethinking indigenous self-determination.
• IWGIA. 1993. "...Never Drink from the Same Cup": Proceedings of the conference on indigenous peoples in Africa.
• IWGIA. 2007. The Indigenous World.
• Liversage, Vincent. 1945. Land Tenure in the Colonies. pp. 2–18, 45—53
• Meek, C.K. 1946. Land Law and Custom in the Colonies.
• McHugh, PG. 2011. Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (Oxford: OUP, 2011)
• McNeil, Kent. 1989. Common Law Aboriginal Title. Oxford University Press.
• McNeil, Kent. 2001. Emerging Justice? essays on indigenous rights in Canada and Australia.
• Robertson, Lindsay G. 2005. Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands. Oxford University Press. ISBN 0-19-514869-X.
• Slattery, Brian. 1983. Ancestral lands, alien laws: judicial perspectives on aboriginal title.
• Young, Simon. 2008. Trouble with tradition: native title and cultural change. Sydney: Federation Press.
• Blake A. Watson, The Impact of the American Doctrine of Discovery on Native Land Rights in Australia, Canada, and New Zealand, 34 Seattle U. L. Rev. 507 (2011).

Australia

• Bartlett, R. 2004 (2d ed.). Native Title in Australia.
• Brockwell, Sally. 1979. Aborigines and the law: a bibliography.
• Law Reform Commission. 1986. The recognition of Aboriginal customary laws. Report No. 31. Parliamentary Paper No. 136/1986.
• McCorquodale, John. 1987. Aborigines and the law: a digest.
• Reynolds, Henry. M.A. Stephenson & Suri Ratnapala (eds.). 1993. Native Title and Pastoral Leases, in Mabo: A Judicial Revolution—The Aboriginal Land Rights Decision and Its Impact on Australian Law.
• Strelein, L. 2009 (2d ed.). Compromised Jurisprudence: Native Title Cases Since Mabo. Aboriginal Studies Press, Canberra.

Bangaldesh

• IWGIA. 2000. Land Rights of the Indigenous Peoples of the Chittagong Hill Tracts, Bangladesh.

Belize

• Grandi, Liza. 2006. Unsettling: land dispossession and the Guatemalan and Belizean frontier colonization process.

Canada

• Borrows, John. 2002. Recovering Canada: the resurgence of Indigenous law.
• Clark, Bruce A. 1990. Native Liberty, Crown Sovereignty.
• Foster, Hamar, Heather Raven & Jeremy Webber. 2007. Let Right Be Done: Aboriginal title, the Calder case, and the future of indigenous rights.

Ghana

• Ollennu, N.A. 1962. Customary Land Law in Ghana.

Guyana

• Bennett, Gordon & Audrey Colson. 1978. The damned: the plight of the Akawaio Indians of Guyana.

Hong Kong

• Nissim, Roger. 2008 (2d ed.). Land administration and practice in Hong Kong.

Kenya

• Mackenzie, Fiona. 1998. Land, ecology, and resistance in Kenya, 1880-1952.
• Odhiambo, Atieno. 1981. Siasa: politics and nationalism in E.A..

Malaysia

• Ramy Bulan. "Native Title as a Proprietary Right under the Constitution in Peninsula Malaysia: A Step in the Right Direction?" 9 Asia Pacific Law Review 83 (2001).
• Bulan, Ramy. "Native Title in Malaysia: A 'Complementary' Sui Generis Right Protected by the Federal Constitution," 11(1) Australian Indigenous Law Review 54 (2007).
• Gray, S. "Skeletal Principles in Malaysia’s Common Law Cupboard: the Future of Indigenous Native Title in Malaysian Common Law" Lawasia Journal 99 (2002).
• Porter, A.F. 1967. Land administration in Sarawak.

Namibia

Legal Assistance Center. 2006. "Our land they took": San land rights under threat in Namibia.

New Zealand

• Boast, Richard, Andrew Erueti, Doug McPhail & Norman F. Smith. 1999. Maori Land Law.
• Brookfield, F.M. 1999. Waitangi & Indigenous Rights.
• Erueti, A. "Translating Maori Customary Title into Common Law Title." New Zealand Law Journal 421-423 (2003).
• Gilling, Bryan D. "By whose Custom? The Operation of the Native Land Court in the Chatham Islands." 23(3) Victoria University of Wellington Law Review (1993).
• Gilling, Bryan D. "Engine of Destruction? An Introduction to the History of the Maori Land Court." Victoria U. Wellington L. Rev. (1994).
• Hill, R. "Politicising the past: Indigenous scholarship and crown—Maori reparations processes in New Zealand." 16 Social and Legal Studies 163 (2007).
• Leane, G. "Fighting them on the Benches: the Struggle for Native Title Recognition in New Zealand." 8(1) Newcastle Law Review 65 (2004).
• Mikaere, Ani and Milroy, Stephanie. "Treaty of Waitangi and Maori Land Law," NZ Law Review 363 (2000).
• McHugh, Paul G. 1983. Maori land laws of New Zealand: two essays.
• McHugh, Paul G. 1984. "Aboriginal title in New Zealand courts", 2 University of Canterbury Law Review 235-265.
• McHugh, Paul G. 1991. The Maori Magna Carta..
• Williams, David V. 1999. "Te Kooti tango whenua": the Native Land Court 1864--1909.

Papua New Guinea

• Mugambwa, J.T. 2002. Land law and policy in Papua New Guinea.
• Sack, Peter G. 1973. Land Between Two Laws: Early European land acquisitions in New Guinea.

South Africa

• Claasens, Aninka & Ben Cousins. 2008. Land, power, and custom: Controversies generated by South Africa's Communal Land Rights Act.

Tanzania

• Japhet, Kirilo. 1967. The Meru Land Case.
• Peter, Chris Maina. 1997. Human Rights in Tanzania: Selected Cases and Materials. pp. 214–269.
• Peter, Chris Maina, and Helen Kijo-Bisimba. 2007. Law and Justice in Tanzania: Quarter a Century of the Court of Appeal.
• Shivji, Issa G. 1990. State Coercion and Freedom in Tanzania. Human & People's Rights Monograph Series No. 8, Institute of Southern African Studies.
• Tenga, Ringo Willy. 1992. Pastoral Land Rights in Tanania.
• Widner, Jennifer A. 2001. Building the rule of law.

Zambia

• Mvunga, Mphanza P. 1982. Land Law and Policy in Zambia.

External links[link]

• http://www.ubcic.bc.ca/Resources/implementation.htm

Warren Stephen Mundine (born 11 August 1956 in Grafton, New South Wales) is an Australian Aboriginal leader and the former National President of the Australian Labor Party (ALP). He is a member of the Bundjalung people.

Mundine worked in the New South Wales public service, including a stint as the CEO of the New South Wales Native Title Service. In 1995, he successfully stood as an independent candidate for Dubbo City Council in central-west NSW, later becoming deputy mayor, a position he held until 2004. He is a long-time member of the ALP and before becoming National President of the party, he previously served as its Senior Vice-President and as a member of the Australian Government's National Indigenous Council. He won the 2005 Bennelong Medal for service to the Aboriginal community.^[1]

He succeeded Barry Jones as President of the ALP, beginning his term on 28 January 2006, and became the first Indigenous Australian to serve as President of an Australian political party.^[2]

Mundine was the ninth of 11 children in his family, eight boys and three girls. He was raised a Catholic. In 1963, the family moved to Sydney and settled in the inner-western suburb of Auburn. After leaving school, he found work as a fitter and machinist, sewerage worker and then later went back to night college to earn his Higher School Certificate. Following a job at the Australian Taxation Office, Mundine moved to Adelaide, studying at the South Australian Institute of Technology, which later became the University of South Australia. He now lives in Sydney and has seven children.

Warren Mundine is also a Director of the Australian Indigenous Education Foundation and the Chairman of the Australian Indigenous Chamber of Commerce.

References[link]

1. ^ The Bennelong Society (2006). Recipients of the Bennelong Medal. Retrieved 28 May 2006.
2. ^ Australian Labor Party (2006). Warren Mundine Begins Term As ALP National President. Retrieved 28 May 2006.

External links[link]

• ALP biography
• Labor's great black hope, The Australian, December 2005 [1]
• VIDEO Warren Mundine and Marcia Langton talk about the need for a new dialogue on Indigenous Affairs on ABC FORA

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Rich Franklin
Born	Rich Jay Franklin II (1974-10-05) October 5, 1974 (age 37) Cincinnati, Ohio, United States
Other names	Ace
Nationality	American
Height	6 ft 1 in (1.85 m)
Weight	203 lb (92 kg; 14 st 7 lb)
Division	Light Heavyweight (205 lb) Middleweight (185 lb)
Reach	76 in (193 cm)
Style	Kickboxing, Brazilian Jiu-Jitsu
Stance	Southpaw
Fighting out of	Cincinnati, Ohio
Team	Team Extreme/The JG MMA and Fitness Academy
Trainer	Matt Hume Jorge Gurgel (Jiu-Jitsu)
Rank	Brown belt in Brazilian Jiu-Jitsu under Jorge Gurgel
Years active	1999–present
Mixed martial arts record
Total	35
Wins	28
By knockout	15
By submission	10
By decision	3
Losses	6
By knockout	4
By decision	2
No contests	1
Amateur career
Total	2
Wins	1
By submission	1
Losses	1
By knockout	1
Other information
University	University of Cincinnati
Spouse	Beth
Notable school(s)	William Henry Harrison High
Website	http://www.richfranklin.com/
Mixed martial arts record from Sherdog
last updated on: September 16, 2011 (2011-09-16)

Rich Jay Franklin II (born October 5, 1974)^[1] is an American mixed martial artist and former UFC Middleweight Champion.

Background[link]

Franklin was born to Richard Sr. and Vaila Franklin. The couple divorced when Rich was five years old. He has one biological brother, Greg, and five step-siblings.^[2][3]

Prior to becoming a full time MMA fighter, Franklin graduated from William Henry Harrison High School. He earned a bachelor's degree in mathematics and later earned a master's degree in education at the University of Cincinnati,^[4] and taught mathematics at the Oak Hills High School in Cincinnati, Ohio.^[5]

Franklin and American Fighter President Jeff Adler created The Keep It In The Ring Foundation to advocate non-violence and build character in youth. This is done through after school sports, martial arts and life skills programs. His nickname "Ace" comes from his resemblance to Jim Carrey, who played the character Ace Ventura. Joe Rogan once called him "An angry Jim Carrey". Franklin made his acting debut in a film called Cyborg Soldier where he plays an escaped super soldier and partners with Tiffani Thiessen.

Franklin is a born-again Christian and quotes Psalm 144:1 on his webpage and fighter gear. February 21, 2006, was officially named "Rich Franklin Day" in Cincinnati by the city's mayor.^[6][7]

Martial arts background[link]

According to Rich, he first learned submission fighting from instructional video tapes. He has been associated with and trained with Meat Truck Inc. and currently trains at facilities run by Brazilian Jiu-Jitsu black belt Jorge Gurgel, (New Generation Martial Arts); Neal Rowe, a Muay Thai instructor (Sacan Martial Arts); and Rob Radford, a boxing instructor (Boxing 4 Fitness). Franklin is currently ranked as a brown belt in Brazilian Jiu-Jitsu under Jorge Gurgel. Since losing his title to Anderson Silva, Franklin has started training under Matt "The Wizard" Hume.

UFC career[link]

Middleweight title[link]

Franklin began his UFC career with a perfect 3-0 start, including a victory over skilled MMA veteran Evan Tanner at UFC 42.

On April 5, 2005, Franklin fought in the main event of The Ultimate Fighter 1 Finale, which was the first live UFC card on free cable TV. He faced former UFC champion Ken Shamrock and won the fight via TKO due to strikes. Franklin was highly impressive in this fight as he was able to knock Shamrock out, something that no one else had done to that point in Shamrock's career. Franklin's win over a mixed martial arts icon like Shamrock propelled him into UFC stardom and established him as one of the organization's biggest stars.^[8] The win over Shamrock also ensured a title opportunity for Franklin.

This title shot came at UFC 53 on June 5, 2005. Franklin defeated Evan Tanner for a second time to win the UFC Middleweight Championship. The victory led to him being a coach (along with welterweight champion Matt Hughes) on the second season of The Ultimate Fighter.

At UFC 56 on November 19, 2005, Franklin defended his title against Nate Quarry, a competitor from season 1 of The Ultimate Fighter. Franklin won the fight via knockout in the first round.

At UFC 58 on March 4, 2006, Franklin defeated David Loiseau in a unanimous five round decision to retain his title. Franklin broke his left hand early on in the second round. The injury required surgery, including a metal plate and screws and Franklin was out of action for six months.

Losing the title[link]

At UFC 64 on October 14, 2006, Franklin lost his title on his return fight after being defeated by Anderson Silva. The fight was stopped at 2:49 of the first round after Franklin received a knee to the face. Franklin, who was considered by many^[who?] to be the favourite coming into the bout, was caught in a clinch by the Brazilian, with Silva delivering a flurry of knees and kicks that rendered the champion unconscious. On October 19, Franklin underwent surgery due to the nasal fracture he received during the fight.

Franklin made his return at UFC 68 against Jason MacDonald. Franklin showed superior striking during the fight, and mounted MacDonald in the closing seconds of the second round, causing significant injury and swelling around MacDonald's left eye. MacDonald's corner advised ending the fight and Franklin was declared the winner by TKO (corner stoppage) between rounds. After the fight Franklin called Anderson Silva to the Octagon and said that he and Dana White had agreed to a fight for the title in Franklin's hometown of Cincinnati.

In a bout that would determine the top contender in the middleweight division, Franklin fought world ranked Yushin Okami at UFC 72 in Belfast, Northern Ireland. Franklin defeated the top middleweight contender by unanimous decision to be officially announced as the number one contender for Silva's middleweight championship. The bout was only Franklin's second overall fight that went the full distance (due to being a non-title fight, it was three rounds). All three judges scored the bout 29–28 to Franklin. Franklin also became the first person to main event a UFC card in Northern Ireland.

Franklin fought Silva for a second time at UFC 77 on October 20, 2007. Prior to the bout, he had recently signed a new six-fight contract with the UFC. Much like their first fight, Silva was able to effectively neutralise Franklin in the clinch, eventually defeating the former champion via TKO (knees) at 1:07 in the second round.

After Rich's second loss to Anderson, he began making regular trips to Seattle, WA to train with Matt Hume of AMC Pankration and Joel Jamieson of 8WeeksOut and trained with both of them to prepare for UFC 83, where Franklin faced Brazilian Jiu-Jitsu black belt Travis Lutter. During the bout Lutter was able to secure a tight high-level armbar, though Franklin was able to escape the hold and go on to win the bout via TKO (strikes) at 3:01 of Round 2. At UFC 88, Franklin made his return to the light heavyweight division against close friend and training partner Matt Hamill. Franklin won by TKO following a kick to the liver which prompted the referee to call a stop to the fight at 0:39 in round 3.

Franklin met with former PRIDE Fighting Championships welterweight and middleweight champion Dan Henderson at UFC 93 in Dublin, Ireland. In a closely contested fight, Franklin ultimately lost by controversial split decision. The winner would gain the opportunity to coach Team USA on Season 9 of The Ultimate Fighter. Franklin became the first person to main event a UFC show in both Northern Ireland and the Republic of Ireland.

At UFC 99 in Cologne, Germany, Franklin defeated former PRIDE middleweight champion Wanderlei Silva via unanimous decision at a catchweight of 195 lbs. Franklin became the first person in UFC history to fight in four different countries, in four consecutive fights.

In another catchweight contest, Rich lost to former UFC light heavyweight champion Vitor Belfort at UFC 103. This was Belfort's first bout in the UFC since February, 2005. After a lengthy feeling-out process, Belfort connected with a left hook that dropped Franklin, following up with a flurry of left hands that ended the contest via TKO at 3:02 in the first round.

Move to Light Heavyweight[link]

Rich Franklin vs. Chuck Liddell at UFC 115

Franklin was rumoured to face multiple-time UFC champion Randy Couture at UFC 115. After contrasting reports on who would be his opponent, Franklin eventually was confirmed to face long-time light heavyweight champion and UFC Hall of Fame inductee Chuck Liddell on June 12, 2010, following the withdrawal of Liddell's original opponent, Tito Ortiz. During the contest, Liddell showed improved striking from that seen in his recent fights, showing more proficient kicks. In the final seconds the opening round, Liddell connected with a head kick and moved forward to attack an arguably stunned Franklin, only to be knocked out by a compact counter right hand at 4:55 of round 1. During the post-fight press conference, Franklin confirmed that his left forearm had been broken by a head kick Liddell threw during the middle of the round. Fortunately, however, the forearm would not need surgery, allowing Franklin to recover faster.

Franklin faced former Light Heavyweight Champion Forrest Griffin on February 5, 2011 at UFC 126.^[9] He lost the fight via unanimous decision.

Franklin was scheduled to face Antonio Rogerio Nogueira at UFC 133 on August 6, 2011 in Philadelphia.^[10] Nogueira was forced out of the bout due to a shoulder injury.^[11] Unable to find a suitable replacement on short notice, the UFC pulled Franklin from the card as well.^[12]

Franklin was expected to be out for two to three months due to the tearing of his labrum that happened during grappling practice,^[13] However Franklin is now expected to return in the late summer of 2012 after having surgery on his injured shoulder.^[14]

Return to Middleweight[link]

Franklin was expected to return to middleweight with a bout against Cung Le at UFC 148.^[15]

However, due to an injury to headliner Vitor Belfort, Franklin is now scheduled to face Wanderlei Silva in a 190 lb catchweight bout on June 23, 2012 at UFC 147.^[16] Franklin and Silva fought once before at UFC 99, where Franklin won via unanimous decision.

Personal life[link]

Rich has a wife named Beth who is a former English teacher at Reading High School.^[17][18]

Championships and accomplishments[link]

Mixed martial arts[link]

• Ultimate Fighting Championship
  • UFC Middleweight Championship (One time)
  • Two successful title defenses
  • Knockout of the Night (One time) vs. Chuck Liddell
  • Fight of the Night (One time) vs. Wanderlei Silva

Mixed martial arts record[link]

See also[link]

• List of current UFC fighters

References[link]

External links[link]

• Official website
• Team American Fighter official Myspace
• 8weeksout.com
• Official UFC Profile