Aboriginal title

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Aboriginal title is a common law property interest in land. It has been recognised in Canada, Australia, New Zealand, the United States, and increasingly in other common law countries as well, such as Malaysia and Nigeria^{[citation needed]}.

The requirements for establishing an aboriginal title to the land vary across countries, but generally speaking, the aboriginal claimant must establish (exclusive) aboriginal occupation from a long time ago, i.e. before the assertion of sovereignty, and continuity to the present day.

Aboriginal title can be extinguished by the Crown, but again, the requirement to do this varies by country. Some require the legislature to be explicit when it does this, others hold that extinguishment can be inferred from the government's treatment of the land.

The leading case for aboriginal title in Canada is Delgamuukw v. British Columbia. The foundational case for aboriginal title in Australia is Mabo (no. 2).

The concept of aboriginal title was first promulgated in the United States Supreme Court decision of Johnson v. McIntosh (1823). This decision changed the existing legal norm that the right of discovery by a European nation-state secured an exclusive right to treat with the Indigenous Peoples. The decision, authored by Chief Justice Marshall (see also Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832)) established the notion that legal title could only rest with the discoverer and that the Indian Nations has a right of use and occupance as an encumbrance on the discovering nation-state legal title. For an excellent discussion as to how this arose see Robertson, Lindsay. Conquest by Law.