The New Oxford Companion to Law by Peter Cane (Editor); Joanne Conaghan (Editor)Call Number: Case Ref E-Book
ISBN: 9780199290543
Publication Date: 2008-11-15
This term is used to describe what is more widely known as the doctrine of common law aboriginal title. Building upon an American jurisprudence dating from the mid‐nineteenth century, courts in Canada (1973), New Zealand (1986 and 2003), Australia (1993 and 1996), Malaysia (1998 and 2002), and South Africa (2003) articulated the doctrine in response to claims by the indigenous tribal polities to legal validation of their customary land rights. Until these ‘breakthrough’ judgments of those years the prevailing belief had been that subsisting traditional land‐rights were non‐justiciable. They had been seen as morally binding on the Crown (the state) as holder of the legal title to the land but otherwise incapable of recognition at law, a position summed up most notoriously in the terra nullius fiction applied in Australia.