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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== 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.〔, 1989, at 161–179.〕 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.〔 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.〔 Its mirror was the Recognition Doctrine, which held that private property rights were presumed to be extinguished in the absence of explicit recognition.〔 In 1608, the same year in which the Doctrine of Continuity emerged,〔''The Case of Tanistry'' (1608) Davis 28 (conquest of Ireland).〕〔Witrong v. Blany (1674) 3 Keb. 401 (conquest of Wales).〕 Edward Coke delivered a famous dictum in ''Calvin’s Case'' (1608) that the laws of all non-Christians would be abrogated upon their conquest.〔''Calvin’s Case'' (1608) 77 E.R. 377, 397–98 (K.B.): "All infidels are in law perpetui inimici, perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a remote possibility) for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual hostility, and can be no peace; . . . And upon this ground there is a diversity between a conquest of a kingdom of a Christian King, and the conquest of a kingdom of an infidel; for if a King come to a Christian kingdom by conquest, . . . he may at his pleasure alter and change the laws of that kingdom: but until he doth make an alteration of those laws the ancient laws of that kingdom remain. But if a Christian King should conquer a kingdom of an infidel, and bring them under his subjection, there ipso facto the laws of the infidel are abrogated, for that they be not only against Christianity, but against the law of God and of nature, contained in the decalogue; and in that case, until certain laws be established amongst them, the King by himself, and such Judges as he shall appoint, shall judge them and their causes according to natural equity."〕 Coke's view was not put into practice, but was rejected by Lord Mansfield in 1774.〔Campbell v. Hall (1774) Lofft 655.〕 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).〔Oyekan & Ors v Adele () 2 All ER 785 (Nigeria).〕 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.〔Mark Walters, ("'Mohegan Indians v. Connecticut'(1705–1773) and the Legal Status of Aboriginal Customary Laws and Government in British North America" ), 33 ' 4 (2007).〕〔For modern litigation over the same land, see ''Mohegan Tribe v. Connecticut'', 483 F. Supp. 597 (D. Conn. 1980), ''aff’d'', 638 F.2d 612 (2d Cir. 1980), ''cert. denied'' 452 U.S. 968, ''on remand'', 528 F. Supp. 1359 (D. Conn. 1982).〕 Other important Privy Council decisions include ''In re Southern Rhodesia'' (1919)〔In re Southern Rhodesia () A.C. 211.〕 and ''Amodu Tijani v. Southern Nigeria (Secretary)'' (1921).〔Amodu Tijani v. Southern Nigeria (Secretary), () 2 A.C. 399.〕 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."〔In re Southern Rhodesia () A.C. 211, 233–34.〕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."〔 Subsequently, the Privy Council issued many opinions confirming the existence of aboriginal title, and upholding customary land claims; many of these arose in African colonies.〔In chronological order: ''Sobhuza II v Miller'' () A.C. 518 (Swaziland); ''Sunmonu v Disu Raphael (Deceased)'' () A.C. 881 (Nigeria); ''Bakare Ajakaiye v Lieutenant Governor of the Southern Provinces'' () A.C. 679 (Nigeria); ''Sakariyawo Oshodi v Moriamo Dakolo'' (4) () AC 667 (Nigeria); ''Stool of Abinabina v. Chief Kojo Enyimadu'' (1953) A.C. 207 (West African Gold Coast); ''Nalukuya (Rata Taito) v Director of Lands'' () A.C. 325 (Fiji); ''Adeyinka Oyekan v Musendiku Adele'' ()2 All ER 785 (West Africa).〕 Modern decisions have heaped criticism upon the views expressed in ''Southern Rhodesia''.〔''Nyali v Attorney General'' () 1 QB 1 (Lord Denning).〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Aboriginal title」の詳細全文を読む スポンサード リンク
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