Customary Rights and Tenure in Law
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Customary Rights and Tenure in Law

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Questions and Answers

What does the landmark case Amodu Tijani v Southern Nigeria signify about changes in sovereignty?

  • They require a new assessment of all land titles.
  • They should not disturb the rights of private owners. (correct)
  • They convert all private titles to Crown grants immediately.
  • Such changes automatically revoke all existing private title rights.

    • What was established by the case R v Calder in Canada regarding aboriginal title?

  • Aboriginal title is entirely dependent on Crown authority.
  • Aboriginal title is a recent legal invention.
  • The continuity of aboriginal title is recognized. (correct)
  • Aboriginal title has no basis in common law.

    • Which of the following criteria is NOT mentioned as part of the proof of claim in the Baker Lake case?

  • Demonstration of cultural rituals. (correct)
  • Membership in an organized society.
  • Exclusivity of occupation.
  • Occupation of the specific territory.

    • How is aboriginal title described in Canada in terms of its legal standing?

    <p>Sui Generis, meaning unique and in a class of its own.</p> Signup and view all the answers

    What potential effect could the liberal interpretation of aboriginal title have?

    <p>It could undermine the rights associated with native title.</p> Signup and view all the answers

    What does 'customary rights' specifically refer to?

    <p>Specific rights to land and resources for local people</p> Signup and view all the answers

    What is crucial for customary tenure to be recognized?

    <p>Proven connection to the land by the people</p> Signup and view all the answers

    Which of the following is NOT typically associated with customary rights?

    <p>Public pathways open to all</p> Signup and view all the answers

    In what context does 'customary tenure' primarily apply?

    <p>Indigenous people's law and social conventions</p> Signup and view all the answers

    Which characteristic is typical of rights under customary tenure?

    <p>Social and spiritual attributes involved in land use</p> Signup and view all the answers

    What might customary walkways exemplify?

    <p>Ancient paths maintained by community custom</p> Signup and view all the answers

    Who typically holds rights under a customary tenure system?

    <p>A social group within the community</p> Signup and view all the answers

    What distinguishes customary rights from public rights?

    <p>Customary rights are based on community recognition rather than documentation</p> Signup and view all the answers

    What is the primary focus of the doctrine of Aboriginal title?

    <p>It establishes legal recognition of Indigenous land rights.</p> Signup and view all the answers

    What is the relationship between land and ancestral connections in Aotearoa called?

    <p>Turangawaewae</p> Signup and view all the answers

    Which statement accurately describes the differences between Territorial and Non-territorial rights?

    <p>Territorial rights pertain to land ownership, while Non-territorial rights relate only to resource usage.</p> Signup and view all the answers

    How can Aboriginal title be extinguished?

    <p>By the passage of laws that explicitly revoke Indigenous land rights.</p> Signup and view all the answers

    Which of the following rights is NOT commonly associated with customary tenure rights in Aotearoa?

    <p>The right to individually own land</p> Signup and view all the answers

    How is Aboriginal title defined?

    <p>Acknowledgment of indigenous rights in land after colonial claims</p> Signup and view all the answers

    What distinguishes Customary tenure from Aboriginal tenure?

    <p>Customary tenure is based on cultural practices, while Aboriginal tenure involves legal claims to land.</p> Signup and view all the answers

    Who is eligible to claim customary rights?

    <p>Any member of the community can claim customary rights.</p> Signup and view all the answers

    What does the Doctrine of Aboriginal Title allow indigenous peoples to do?

    <p>Retain possession, occupation, and use of land</p> Signup and view all the answers

    Which option is NOT one of the four ways of acquiring sovereignty?

    <p>Territorial exchange</p> Signup and view all the answers

    What type of rights do hapū or whānau possess regarding land in Aotearoa?

    <p>Divisible and non-exclusive rights</p> Signup and view all the answers

    Which includes the rights to residential occupation under customary tenure?

    <p>Competing and non-territorial rights</p> Signup and view all the answers

    Why is prior occupation important in claiming Aboriginal title?

    <p>It helps prove longstanding rights to land</p> Signup and view all the answers

    What is a fundamental concept that distinguishes property from possession?

    <p>Property implies a legal right, while possession does not.</p> Signup and view all the answers

    Which of the following best describes the concept of 'Fee Simple' in land law?

    <p>A permanent interest in land that can be inherited.</p> Signup and view all the answers

    What is the primary source of the New Zealand land tenure system?

    <p>European colonial regulations.</p> Signup and view all the answers

    What significant transition in land ownership occurred after the Norman Conquest of 1066?

    <p>All land was recognized as being owned by the King.</p> Signup and view all the answers

    How does Locke's idea of property relate to the wasteland doctrine?

    <p>It asserts that ownership requires productivity of the land.</p> Signup and view all the answers

    What role do boundaries and surveys play in property ownership?

    <p>They allow for the enforcement of property rights.</p> Signup and view all the answers

    What is meant by the 'bundle of rights' analogy in property law?

    <p>It highlights the various rights an owner has, including use, rental, and sale.</p> Signup and view all the answers

    Which term describes the legal rights related to customary land ownership?

    <p>Customary rights.</p> Signup and view all the answers

    Study Notes

    Doctrine of Tenure

    • All land in England is legally owned by the Crown
    • This is a legal fiction, not meant to deny individuals their legitimate land interests.

    Customary Rights

    • Rights to land and resources that may exist in a local/community context
    • Not created by a formal document, examples: walkways, rights to roam in rural areas
    • These are not public rights; they are rights reserved for members of a local community
    • In NZ, Māori manawhenua may have customary rights to cross land and gather resources.
    • Example: A Māori hapū having the right gather shellfish in a specific location.

    Customary Tenure

    • Traditional systems of law and social convention of indigenous peoples
    • Based on a proven connection to a land (not a public right)
    • Belonging and connection to the land are crucial
    • Typical features: rights recognized by the community, rules of land ownership and use are social and spiritual, rights are held by social groups (not individuals).

    Customary Tenure in Aotearoa

    • Close relationship with the land, creation stories, gods of the environment, ancestors, traditional practices
    • “Whenua" - connection to the descendants and past generations.
    • Turangawaewae: a place where one has standing
    • Rights in land are group rights held by hapū or whanau
    • Rights may include: occupy, cultivate, harvest, hunt, reside
    • Rights are non-exclusive, competing, divisible and non-territorial.

    Aboriginal Title

    • Recognized in common law
    • Indigenous rights to land despite colonial claims of sovereignty
    • Allows the right to possess, occupy, and use land based on traditional customs
    • Indigenous people may claim Aboriginal title if they can prove longstanding prior occupation and rights
    • The rights associated with Aboriginal title are not limited to traditional use, indigenous people have a right to development.

    Amodu Tijani v Southern Nigeria (1921)

    • Landmark case in Nigerian law
    • Illustrates the principle that colonial claims of sovereignty do not automatically extinguish prior land rights.

    Aboriginal Title in Canada

    • Initially, Aboriginal title was seen as derived from the Crown and subject to its approval.
    • In 1973 (R v Calder), the Canadian court recognized the continuity and existence of Aboriginal title in common law.
    • In 1979 (Baker Lake v Minister of Indian Affairs) established criteria for proving a claim:
      • The claimant group was organized,
      • They continuously occupied the specific territory
      • Occupation was exclusive to the group
      • Occupation was established prior to English sovereignty.

    Aboriginal Title in Canada: Sui Generis

    • Aboriginal title is unique and avoids comparison with fee-simple ownership.
    • This approach may either:
      • Undermine the rights associated with Aboriginal Title
      • Allow for a more liberal interpretation of native rights.

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    Related Documents

    SURV306 Land Tenure 2 Lecture 4 - Customary Tenure and Aboriginal Title PDF

    Description

    This quiz explores the concepts of customary rights and tenure, particularly within the context of England and indigenous communities in New Zealand. It addresses legal ownership, community rights, and the social conventions governing land use. Test your knowledge on the implications of these legal frameworks!

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