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

SURV306 Land Tenure 2 Lecture 4...

SURV306 Land Tenure 2 Lecture 4 Customary Rights and Aboriginal Title 24 July 2024 Francesca Marzatico Photo: Te Hawere-a-Maki (Goat Island) by Piotr Zurek (CC BY-NC-SA 2.0) Yesterday – Revision Define property, ownership and possession. What are the differences between these concepts? What are the essential characteristics of property rights? Explain the difference between real property and personal property. What is the significance of boundaries and surveys in determining property ownership? What is Locke’s idea of property? How does Locke’s idea of property relate to the wasteland doctrine? What are the key principles of a property regime? What is Rousseau’s idea of property What does land tenure mean? How did property rights evolve? Describe the ‘bundle of rights’ analogy Why is security of tenure important? 2 Yesterday – Summary Law & Land Law Land tenure Definition of property How do you prove that you have property Possession v. Occupation Definition of property Various ideas of property Locke and the wasteland doctrine 3 Today Doctrine of tenure Customary Rights Aboriginal Title Non-territorial title Case law Revision 4 History New Zealand system derived direct from England Before 1066 Spiritual – so the Church amassed larger land holdings Military Production Personal After 1066 (Norman Conquest) all land held directly from the King in return for services 1086 William I required the return of lands under his control in England Those who got the land from the King were called Tenants services replaced by payments to the Crown Fee Simple Now we have freehold estates; tenant in fee simple. estate in fee simple Estate limited absolutely to a man and his heirs and assigns forever without limitations in conditions [Black’s Law Dictionary] The basis of English land law is that all land in England is owned by the Crown. A small part is in the actual occupation of the Crown; the rest is occupied by tenants holding either directly or indirectly from the Crown. ‘nulle terre sans seigneur’ (no land without a lord); there is no allodial land in England, i.e. no land owned by a subject and not held of some lord. Megarry’s Manual of the Law of Real Property. 1982 There are thus two basic doctrines in the law of real property. These are known as i. the doctrine of tenures: all land is held of the Crown, either directly or indirectly, on one or other of the various tenures; and ii. the doctrine of estates: a subject cannot own land, but can merely own an estate in it, authorizing him to hold it for some period of time. In short, the tenure answers the question “How is it held?” the estate the question “For how long?” Megarry’s Manual of the Law of Real Property. 1982 Doctrine of Tenure This is a construct of our common law: the Crown is the ultimate owner of all land the Crown has eminent domain land is subject to right of resumption – Crown may terminate tenant’s estate and resume the land Doctrine of Estates When we think we ‘own’ land - we have merely an estate or interest in the land granted from the Crown We don’t own the land – we have a bunch of rights in land These rights may differ from parcel to parcel, may be limited in time, may allow different levels of possession Possession and Rights The effect of the doctrines of tenures and estates is that there is no absolute ownership of land (except for the Crown); only ownership of greater or lesser rights (estates/interests) in it. Hence the concept of the bundle of rights And ‘possession’ describes a relationship between a person and the estate – not the relationship between a person and the physical land. Legal Fiction This doctrine is now seen as a legal fiction retained in the interests of continuity, not logic. (see Law Commission 1992 Report) As a legal fiction it should not be used or interpreted to deny individuals of their legitimate interests in land (see the case of the recognition of Aboriginal tenure) Today Doctrine of tenure Customary Rights Aboriginal Title Non-territorial title Case law Revision 13  Customary Rights Customary rights refers to specific rights to land and resources that may exist in a local context for local people In England there are many land rights that are supported by custom not created by nor defined by a documentary title may include customary walkways – footpaths through farmland – a local right to wander along ancient pathways over open countryside They are not normally free public rights, but rights attaching to people who are part of a local community In NZ, a local right (held by Māori with manawhenua) e.g., to cross land and to gather traditional resources Photo: New Zealand, 2006, by Jorge Royan CC-BY-SA-3.0  Customary Tenure Refers to the traditional systems of law and social convention of indigenous peoples in respect of their rights in land and natural resources. It depends on those people having a proven connection with that land (they may be quite different from public rights) Belonging is crucial Photo: "He whenua tino ātaahua me matomato te Waikato. #howgreenismyvalley #waikato #kakepuku #nehenehenui #rāhui #level3 #backonthetrail" by easegill is marked with CC BY-NC-SA 2.0.  Typical Features of Customary Tenures Rights depend on recognition by the community at large Rights to land and natural resources (acquisition, transmission and use) are usually explicit but may be not written Rules of land ownership and use involve social (and spiritual) attributes Rights are held by a social group, e.g. tribe clan or family (focus on the community) Rights may be held fiducially by leader who expresses group consensus Individual rights may be limited - to season, to specific use, to resource, and may revert if not used and often entail obligations Photo: Ferns, New Zealand, 2006, by Jorge Royan CC-BY-SA-3.0 Customary tenure main elements s In tikanga Māori (Māori custom): nkks ld ilni ks Bury whenua, pou whenua, waka waka, nand lin LaL l tūrangawaewae, tapu, pou rāhui, ahi kā visits o na r s to urupā, visits to marae) [See later slides for e r pe s more detail] Int link nd ks La ll in Whānau, controls by traditional authorities & a by family and community pressure, muru, r s on e mana, mahi (incl. mahinga kai), utu etc. [See t e rp s later slides for more detail] In link nd ks La ll in a Reference: r s on Goodwin, D.P. (2011) “Splitting the e snk s te rp li k atom of communal land tenure, with In in na dnld specific reference to Māori freehold LaL land.” New Zealand Surveyor (301): 4-10. 17 Individualised tenure Interpersonal links Land links: formal, Interpersonal codified tenure Land links links (family, backed by a neighbourhood, judicial system, workplace, paid for by rates church, club) are and taxes: voluntary/ private: Mainly legal links with land (rights, people can “opt interests, out”. easements) mostly divorced Rights are. entirely from land generally exclusive right security. [Source: Goodwin D. (2011) (private property). SURV456 Course Book, School of Surveying, University of Otago] 18  Māori customary tenure No mistake could be greater than the notion that the Māoris were without law in their relations with one another, or that there was any looseness in their notions of the tenure of land. On the contrary, they had very stringent laws that were not at all unsuited to their condition and the stage of social development they had reached … (George Clarke. Protector of Aborigines. 1844.) "Kia Rite Kia Mataara, Archives New Zealand's Tohu Māori" by Archives New Zealand is marked with CC BY 2.0.  Customary Tenure in Aotearoa Close relationship with the land; creation stories, gods of the environment, ancestors, traditional practices Land = whenua connection with the land with the ancestors and future generations Turangawaewae Rights in land are group rights held by hapū or whanau (not individually) The possible rights include the rights to occupy, cultivate, harvest, hunt, reside, etc. Non exclusive, competing, divisible and non- territorial rights. "Māori Art" by Like_the_Grand_Canyon is marked with CC BY-NC 2.0. Today Doctrine of tenure Customary Rights Aboriginal Title Non-territorial title Case law Revision 21 Four ways of acquiring sovereignty Conquest Cession Occupation Annexation How about NSW and terra nullius and the doctrine of discovery? 22  Aboriginal Title Aboriginal title exists at common law Aboriginal tenure refers to the acknowledgement in common law of the continuation of indigenous rights in land after English colonial claims of sovereignty The Doctrine of Aboriginal Tenure allows the right to retain possession, occupation and use of land, based on an original claim under traditional custom and practice. Photo: Australian Aboriginal Art by dun_deag, CC-BY-SA-2.0 source https://www.flickr.com/photos/dun_deagh/6854184762/  Aboriginal Title The Doctrine of Aboriginal title allows the right to retain possession, occupation and use of land, based on an original claim under traditional custom and practice, but those rights not limited to traditional use (so indigenous people have a right to development) Indigenous people may claim aboriginal title to land because they can prove longstanding prior occupation and rights. Once that claim is accepted it should include all the rights of ownership (and not restricted to customary or traditional uses or practices). Photo: Modern aboriginal art | Kim Unertl | Flickr, CC BY-NC-ND 2.0  Brookfield 1999;51-52. “Basic to the doctrine of aboriginal title is the proposition that, upon the Crown’s acquisition of sovereignty by whatever means, the property rights of the indigenous people (as of other inhabitants) were preserved, except where Aboriginal Title at the time the Crown acquired sovereignty it simultaneously seized property by act of state or where it had already done so. Thus, in relation to the ownership or use of land and rights such as fishing and hunting rights, the doctrine of aboriginal title recognized by the courts incorporated as part of the common law much of the substance of pre-existing, indigenous customary law” Photo: Rob Freijis, Aboriginal Art Wall, CC-BY-SA-3.0, https://web.archive.org/web/20161120221558/http://www.panoramio.com/photo/7397570,  Indigenous communities claim of the Aboriginal Title Indigenous people may claim aboriginal title to the land because they can prove longstanding prior occupation and rights. Once that claim is accepted it should include all the rights of ownership (and not restricted to customary or traditional uses or practises - so indigenous people have a right to development). Note: all of this is quite separate and distinct from any claims to land or rights in land arising from any treaty (e.g. Te Tiriti o Waitangi). The rights of aboriginal title exist irrespective of the rights guaranteed under the Treaty of Waitangi  Extinguishment Aboriginal tenure can only be extinguished by: Voluntary acts of the indigenous people (by sale or cession to the Crown) By acts of the legislature – i.e. by statute (not by acts of the executive, and not by the issue of a Crown Grant – see Tamaki v Baker case law, but also R v Symonds, and very significantly Ngati Apa v Ag 2003) Photo: Alan Levine, Aboriginal Art, CC0 1.0 Universal (CC0 1.0) Today Doctrine of tenure Customary Rights Aboriginal Title Non-territorial title Case law Revision 28  Territorial / Non Territorial Title There is a new distinction being emphasised between aboriginal title (as in ownership of the land) and aboriginal rights (as in usufruct of resources on the land). Territorial Title – a tribal claim to full titular ownership of the land Non-Territorial Title – aboriginal servitudes less than ownership of land, e.g. rights to cross land, to fish, to collect fauna and flora (see Te Weehi v Regional Fisheries Officer 1986). "maori art" by Bethany J. Baker Photography is marked with CC BY-NC-ND 2.0.  Non territorial title The extinguishment of Territorial Title does not necessarily mean removal of non- territorial title Recognition of Aboriginal tenure has been increasing in Canada and Australia – i.e. Aboriginal title exists at common law So the rights of aboriginal tenure exist irrespective of the rights guaranteed under the Treaty of Waitangi Instead of rights in land being derived from title (or specific rights in land being a subset of the rights of ownership of the land - as in a western system of land tenure). "Rotorua New Zealand. Geyser or volcanic steam vent.Whakarewarewa Maori park" by denisbin is marked with CC BY-ND 2.0. Recognition & acknowledgement Recognition of Aboriginal Tenure has fluctuated in common law countries but is increasingly recognised now. Case law: In Australia (Mabo, Wik) In Canada (Calder, Delgamuukw) In NZ (Te Weehi, Te Ika Whenua) "pou whenua" by olicanae is marked with CC BY-NC 2.0. Today Doctrine of tenure Customary Rights Aboriginal Title Non-territorial title Case law Revision 32 AmoduTijani v Southern Nigeria 2 AC 399 This landmark Nigerian case at the Privy Council “A mere change in sovereignty is not to be presumed as meant to disturb rights of private owners; and the general terms of a cession are prima facie to be construed accordingly. The introduction of the system of Crown grants which was made subsequently must be regarded as having been brought about mainly, if not exclusively, for conveyancing purposes, and not with a view to altering substantive titles already existing” [407-408]. Canada In Canada initially, an assumption that Indian title was only derived from the Crown, and subject to the goodwill of the Crown. – (case - St Catherines) By 1973 (case R v Calder) an acceptance of the continuity of aboriginal title and its existence in common law In 1979 (case Baker Lake v Minister of Indian Affairs) described rules for proof of claim: 1. They and their ancestors were members of an organised society 2. The organised society occupied the specific territory 3. Occupation was to the exclusion of other organised societies 4. Occupation was an established fact at the time sovereignty was asserted by England Aboriginal title in Described as Sui Generis Unique – in a class of its own Canada Avoids the need to compare aboriginal title s with fee - simple This may undermine the rights attached to native title Or it may allow for a more liberal interpretation of those rights.  Settled on the basis of Terra Nullius (empty Australia land) – now recognition of people The Aboriginal title had no part in law except if specifically recognised by statute, Aborigines had no title unless derived from the Crown Aboriginal title often described as Native title in Australia: Native title describes the rights which Aboriginal people have to land and waters according to their customary laws, but viewed from and recognised by, the Australian legal system. Read more: http://www.creativespirits.info/aboriginalculture/land/native- title.html#ixzz1zVYnHGl3  By 1990 – the Mabo decision Recognised that aboriginal title existed in Mabo common law where it had not been extinguished Aboriginal rights survived the Crown’s acquisition of sovereignty and could co-exist with title derived from the Crown But must be formally recognised by the Crown And must depend on continued existence and observation of traditional laws and customs (perhaps no development rights here??) The Wik case also reaffirmed aboriginal title and the possibility that it could co-exist with Crown pastoral leases. In New Zealand Iwi claims to the foreshore and seabed are the most obvious examples of our recognition of customary title. The Court of Appeal (in Ngati Apa 2003) recognised that customary title continued until it was legitimately extinguished, and it had not been in New Zealand But could be extinguished by clear and plain intent of the legislature (e.g. in F&S Act 2004) But customary rights ordered from the courts are uncertain. e.g. depend on exclusive possession, but does it allow exclusionary powers? Thank you 39 References Asch, M. 2000. First Nations and the Derivation of Canada's Underlying Title: Comparing Perspectives on Legal Ideology. Aboriginal rights and self-government: the Canadian and Mexican experience in North American perspective. C. Cook and J. D. Lindau, McGill-Queen's University Press: 148-167. Boast, R., A. Erueti, et al. 2004. Maori Land Law. Wellington, Butterworths of New Zealand Ltd. Brookfield, F. M. 1999. Waitangi & Indigenous Rights: Revolution, Law & Legitimation. Auckland, Auckland University Press. Havemann, P. E., Ed. 1999. Indigenous Peoples' Rights in Australia, Canada, and New Zealand. Auckland, Oxford University Press. Kawharu, I. H. 1977. Maori Land Tenure: Studies of a changing institution. Oxford, Oxford University Press. Kingi T. 2002. Individualisation of Maori Customary Tenure and Maori Agricultural Development. FAO/USP/RICS Foundation South Pacific Land Tenure Symposium: Transforming Land Conflict. Fiji. McNeil, K. 2000. "The Post-Delgamuukw Nature and Content of Aboriginal Title." Retrieved 19 July, 2002, from http://www.delgamuukw.org/research/content.htm. McNeil, K. 1989. Common Law Aboriginal Title. Oxford, Oxford University Press. Williams D.V. 2003(?), Customary rights and Crown claims: Calder and other Canadian contributions to the revival of the doctrine of aboriginal title in Aotearoa New Zealand. A paper prepared for seminars preparatory to the conference “Let Right Be Done: Calder, Aboriginal Rights and the Treaty Process: looking Forward, looking Back”. Ruru, J. 2011. Property Rights and Maori: A right to own a river. In Bosselmann & Tava. [eds] Water Rights and Sustainability. NZ Centre for Environmental Law. Monograph series: Vol 3. Strack, M. & Goodwin, D. P. 2017. More than Mere Shadow? : The Colonial Agenda of Recent Treaty Settlements. (2017) 25 Waikato Law Review 41-58. Strack, M. 2017. Land and Rivers can own themselves. International Journal of Law in the Built Environment. Vol. 9(1):4-17. https://www.emeraldinsight.com/doi/full/10.1108/IJLBE-10-2016-0016 Video – First Australians. The untold story of Australia. 2008. Blackfella Films. Series of 7 documentary films – note esp the Mabo story.  How are customary rights different from public rights? What is the difference between Customary tenure and Aboriginal tenure? Who can claim customary Review rights? Describe the Doctrine of Aboriginal title How may Aboriginal title be extinguished? What is the difference between Territorial and Non- territorial rights?