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Questions and Answers
What does the landmark case Amodu Tijani v Southern Nigeria signify about changes in sovereignty?
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?
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?
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?
How is aboriginal title described in Canada in terms of its legal standing?
What potential effect could the liberal interpretation of aboriginal title have?
What potential effect could the liberal interpretation of aboriginal title have?
What does 'customary rights' specifically refer to?
What does 'customary rights' specifically refer to?
What is crucial for customary tenure to be recognized?
What is crucial for customary tenure to be recognized?
Which of the following is NOT typically associated with customary rights?
Which of the following is NOT typically associated with customary rights?
In what context does 'customary tenure' primarily apply?
In what context does 'customary tenure' primarily apply?
Which characteristic is typical of rights under customary tenure?
Which characteristic is typical of rights under customary tenure?
What might customary walkways exemplify?
What might customary walkways exemplify?
Who typically holds rights under a customary tenure system?
Who typically holds rights under a customary tenure system?
What distinguishes customary rights from public rights?
What distinguishes customary rights from public rights?
What is the primary focus of the doctrine of Aboriginal title?
What is the primary focus of the doctrine of Aboriginal title?
What is the relationship between land and ancestral connections in Aotearoa called?
What is the relationship between land and ancestral connections in Aotearoa called?
Which statement accurately describes the differences between Territorial and Non-territorial rights?
Which statement accurately describes the differences between Territorial and Non-territorial rights?
How can Aboriginal title be extinguished?
How can Aboriginal title be extinguished?
Which of the following rights is NOT commonly associated with customary tenure rights in Aotearoa?
Which of the following rights is NOT commonly associated with customary tenure rights in Aotearoa?
How is Aboriginal title defined?
How is Aboriginal title defined?
What distinguishes Customary tenure from Aboriginal tenure?
What distinguishes Customary tenure from Aboriginal tenure?
Who is eligible to claim customary rights?
Who is eligible to claim customary rights?
What does the Doctrine of Aboriginal Title allow indigenous peoples to do?
What does the Doctrine of Aboriginal Title allow indigenous peoples to do?
Which option is NOT one of the four ways of acquiring sovereignty?
Which option is NOT one of the four ways of acquiring sovereignty?
What type of rights do hapū or whānau possess regarding land in Aotearoa?
What type of rights do hapū or whānau possess regarding land in Aotearoa?
Which includes the rights to residential occupation under customary tenure?
Which includes the rights to residential occupation under customary tenure?
Why is prior occupation important in claiming Aboriginal title?
Why is prior occupation important in claiming Aboriginal title?
What is a fundamental concept that distinguishes property from possession?
What is a fundamental concept that distinguishes property from possession?
Which of the following best describes the concept of 'Fee Simple' in land law?
Which of the following best describes the concept of 'Fee Simple' in land law?
What is the primary source of the New Zealand land tenure system?
What is the primary source of the New Zealand land tenure system?
What significant transition in land ownership occurred after the Norman Conquest of 1066?
What significant transition in land ownership occurred after the Norman Conquest of 1066?
How does Locke's idea of property relate to the wasteland doctrine?
How does Locke's idea of property relate to the wasteland doctrine?
What role do boundaries and surveys play in property ownership?
What role do boundaries and surveys play in property ownership?
What is meant by the 'bundle of rights' analogy in property law?
What is meant by the 'bundle of rights' analogy in property law?
Which term describes the legal rights related to customary land ownership?
Which term describes the legal rights related to customary land ownership?
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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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