89-735: Murujuga , formerly known as Dampier Island and today usually known as the Burrup Peninsula , is an area in the Dampier Archipelago , in the Pilbara region of Western Australia , containing the town of Dampier . The Dampier Rock Art Precinct , which covers the entire archipelago, is the subject of ongoing political debate due to historical and proposed industrial development. Over 40% of Murujuga lies within Murujuga National Park , which contains within it
178-550: A campaign to preserve the remaining monument. Murujuga has been listed in the National Trust of Australia Endangered Places Register and in the 2004 , 2006 , and 2008 World Monuments Watch by the World Monuments Fund . About 900 sites, or 24.4 percent of the rock art on Murujuga, had been destroyed to make way for industrial development between 1963 and 2006. The Western Australian government argued for
267-648: A credible, but yet unproven, claim to Aboriginal title. In 2014 the Supreme Court ruled unanimously for the plaintiff in Tsilhqot'in Nation v. British Columbia . Rejecting the government's claim that Aboriginal title applied only to villages and fishing sites, it instead agreed with the First Nation that Aboriginal title extends to the entire traditional territory of an indigenous group, even if that group
356-608: A famous dictum in Calvin's Case (1608) that the laws of all non-Christians would be abrogated upon their conquest. Coke's view was not put into practice, but was rejected by Lord Mansfield in 1774. 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). The first Indigenous land rights case under
445-610: A land access agreement with the Ngarluma and Yindjibarndi people. The Ngarluma and Yindjibarndi people established the Ngarluma and Yindjibarndi Foundation Limited (NYFL). Since 2000, NYFL has been the traditional owner representative organisation for the North West Shelf area. The 1998 agreement with the Ngarluma and Yindjibarndi people is largely considered to be outdated and fails to meet accepted standards for industry agreements with traditional owners. Work commissioned by
534-446: A long time ago, generally before the assertion of sovereignty , and continuity to the present day. Aboriginal title does not constitute allodial title or radical title in any jurisdiction. Instead, its content is generally described as a usufruct , i.e. a right to use, although in practice this may mean anything from a right to use land for specific, enumerated purposes, or a general right to use which approximates fee simple . It
623-515: A much lower figure, suggesting that only 4 percent of sites, representing approximately 7.2 percent of petroglyphs, had been destroyed since 1972, citing the lack of a complete inventory of rock art in the region as making assessments a challenging task. In 1996, a land use plan by the Burrup Peninsula Management Advisory Board divided the region into two areas: While the plan commented upon "the value of
712-647: A six-storey building and burns the equivalent of the entire annual emissions in New Zealand, every day. In February 2009, the state government released a report finding that industry emissions did not damage the rock art. WA Greens Senator Rachel Siewart criticised Premier Colin Barnett for reversing his previous support for protecting the rock art. As of 2011, the area remained on the World Monument Fund 's list of 100 Most Endangered Places in
801-938: A statutory procedure that returned approximately 40% of the Northern Territory to Aboriginal ownership; the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 , had a similar effect in South Australia . The High Court of Australia , after paving the way in Mabo No 1 by striking down a State statute under the Racial Discrimination Act 1975 , overruled Milirrpum in Mabo v Queensland (No 2) (1992). Mabo No 2 , rejecting terra nullius , held that native title exists (6–1) and
890-494: Is a group of 42 islands near the town of Dampier in Pilbara , Western Australia . The archipelago is also made up of reefs, shoals, channels and straits and is the traditional home of five Aboriginal language groups. It was formed 7000 years ago when rising sea levels flooded what were once coastal plains. The underlying rocks are among the oldest on Earth, formed in the Archaean period more than 2400 million years ago. It
979-523: Is common ground among the relevant jurisdictions that aboriginal title is inalienable, in the sense that it cannot be transferred except to the general government (known, in many of the relevant jurisdictions, as " the Crown ")—although Malaysia allows aboriginal title to be sold between indigenous peoples, unless contrary to customary law . Especially in Australia, the content of aboriginal title varies with
SECTION 10
#17327935952091068-571: Is dark grey-green coloured, and composed of granophyre , gabbo, dolerite , and granite . The traditional owners of the Murujuga are an Aboriginal nation known as the Yaburara (Jaburara) people. In Ngayarda languages , including that of the Yaburara, murujuga means "hip bone sticking out". Between February and May 1869 a great number of Yaburara people were killed in an incident known as
1157-405: Is expected to begin in 2026. The project has received environmental approval. The Murujuga Aboriginal Corporation has no role in approving such industrial projects, but there is research being undertaken as to whether increased emissions would affect the rock art. The relationship between traditional owners and Woodside has been complex. In July 2022, Raelene Cooper presented the concerns of some of
1246-940: Is extinguishable by the sovereign (7–0), without compensation (4–3). In the wake of the decision, the Australian Parliament passed the Native Title Act 1993 (NTA), codifying the doctrine and establishing the National Native Title Tribunal (NNTT). Western Australia v Commonwealth upheld the NTA and struck down a conflicting Western Australia statute. In 1996, the High Court held that pastoral leases , which cover nearly half of Australia, do not extinguish native title in Wik Peoples v Queensland . In response, Parliament passed
1335-462: Is named after William Dampier , an English buccaneer and explorer who visited in 1699. Dampier named one of the islands Rosemary Island . Despite being a region through which considerable shipping and industrial activity occurs, the archipelago has considerable marine resources. Dampier Archipelago is the site of some of Australia's oldest domestic structures, estimated to be between 8000 and 9000 years old. The largest island (or peninsula) in
1424-401: Is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation, and (iii) at sovereignty, that occupation must have been exclusive." Subsequent decisions have drawn on the fiduciary duty to limit the ways in which the Crown can extinguish Aboriginal title, and to require prior consultation where the government has knowledge of
1513-648: The Aboriginal Heritage Act 1972 ), and the Federal Government said such underwater sites fall under the state jurisdiction. The federal Underwater Cultural Heritage Act 2018 was updated in 2019 to automatically include sunken aircraft and shipwrecks older than 75 years, but it does not automatically include Aboriginal sites. After the Murujuga National Park was closed for some months to allow for its construction,
1602-777: The Australian Research Council , in collaboration with the Murujuga Aboriginal Corporation, on a project known as the "Deep History of Sea Country" project. Teams from Flinders University , the University of Western Australia , James Cook University , Airborne Research Australia , and the University of York in England were involved. The site was placed on the WA Aboriginal Heritage List (protected under
1691-861: The Committee on the Elimination of Racial Discrimination . The 2004 Act was repealed with the passage of the Marine and Coastal Area (Takutai Moana) Act 2011 . The High Court of Australia , which had appellate jurisdiction before 1975, recognized aboriginal title in Papua New Guinea —decades before it did so in Australia—in Geita Sebea v Territory of Papua (1941), Administration of Papua and New Guinea v Daera Guba (1973) (the "Newtown case"), and other cases. The Supreme Court of Papua New Guinea followed suit. Schedule 2 of
1780-631: The Constitution of Papua New Guinea recognizes customary land tenure , and 97% of the land in the country remains unalienated. In Alexkor v Richtersveld Community (2003), a suit under the Restitution of Land Rights Act 1994 , lawyers gathered case law from settler jurisdictions around the world, and judges of the Constitutional Court of South Africa talked frankly about Aboriginal title. The Land Claims Court had dismissed
1869-587: The Flying Foam Massacre . The five clans who took over the care of the land as traditional custodians following the massacre include Yaburara, Ngarluma , Mardudhunera , Yindjibarndi and Wong-Goo-Tt-Oo peoples. First given the English name Dampier Island after the English navigator William Dampier (1651–1715), it was then an island lying 3 kilometres (1.9 mi) off the Pilbara coast. In 1963
SECTION 20
#17327935952091958-598: The National Trust of Western Australia led it to nominate the site for the National Trust Endangered Places list in 2002. In 2004, funding was provided by American Express through the World Monuments Fund for further research and advocacy to be undertaken, with the goal of achieving national heritage status for the site. In 2006 the Australian Heritage Council advised the federal Environment and Heritage Minister that
2047-656: The Native Land Act 1909 declared aboriginal title unenforceable against the Crown. Eventually, the Privy Council acquiesced to the view that the Treaty was non-justiciable. Land was also lost under other legislation. The Counties Act 1886 s.245 said that tracks, "over any Crown lands or Native lands, and generally used without obstruction as roads, shall, for the purposes of this section, be deemed to be public roads, not exceeding sixty-six feet in width, and under
2136-504: The Native Title Amendment Act 1998 (the "Ten Point Plan"), extinguishing a variety of Aboriginal land rights and giving state governments the ability to follow suit. Western Australia v Ward (2002) held that native title is a bundle of rights , which may be extinguished one by one, for example, by a mining lease. Yorta Yorta v Victoria (2002), an appeal from the first native title claim to go to trial since
2225-610: The Numbered Treaties were void. A variety of non-land rights cases, anchored on the Constitution Act 1982, have also been influential. Delgamuukw v. British Columbia (1997) laid down the essentials of the current test to prove Aboriginal title: "in order to make out a claim for [A]boriginal title, the [A]boriginal group asserting title must satisfy the following criteria: (i) the land must have been occupied prior to sovereignty, (ii) if present occupation
2314-769: The Toledo District filed a complaint with the Inter-American Commission on Human Rights (IACHR), which sided with the Maya in 2004 and stated that the failure of the government of Belize to demarcate and title the Maya cultural lands was a violation of the right to property in Article XXIII of the American Declaration . In 2007, Chief Justice Abdulai Conteh ruled in favor of the Maya communities of Conejo and Santa Cruz, citing
2403-596: The AGM, Director Don Voelte finally admitted that the State Government had directed them towards developing amidst the rock art and that they had accepted. The debate continued as of June 2007, with no intervention made by the Australian government. The federal minister indicated support for National Heritage listing, but the question of site boundaries and management strategies was still under negotiation. The site
2492-754: The Australian citizenry as a result of the 1967 referendum . In 1971, Blackburn J of the Supreme Court of the Northern Territory rejected the concept in Milirrpum v Nabalco Pty Ltd (the "Gove land rights case"). The Aboriginal Land Rights Commission was established in 1973 in the wake of Milirrpum . Paul Coe , in Coe v Commonwealth (1979), attempted (unsuccessfully) to bring a class action on behalf of all Aborigines claiming all of Australia. The Aboriginal Land Rights Act 1976 , established
2581-723: The CKGR. Aboriginal title has been recognized in Common Law in Canada since the Privy Council , in St. Catharines Milling v. The Queen (1888), characterized it as a personal usufruct at the pleasure of the Queen. This case did not involve indigenous parties, but rather was a lumber dispute between the provincial government of Ontario and the federal government of Canada. St. Catharines
2670-472: The Constitution Act, 1982 explicitly recognized and preserved aboriginal rights. R. v. Guerin (1982), the first Supreme Court of Canada decision handed down after the Constitution Act 1982, declared that Aboriginal title was sui generis and that the federal government has a fiduciary duty to preserve it. R. v. Simon (1985) overruled R. v. Syliboy (1929) which had held that Aboriginal peoples had no capacity to enter into treaties, and thus that
2759-678: The Court did not have jurisdiction to make a declaration in favour of the Nisga'a in the absence of a fiat of the Lieutenant-Governor of B.C. permitting suit against the provincial government. Section 91(24) of the Constitution Act, 1867 ("British North America Act 1867") gives the federal government exclusive jurisdiction over First Nations, and thus the exclusive ability to extinguish Aboriginal title. Section Thirty-five of
Murujuga - Misplaced Pages Continue
2848-482: 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, Edward Coke delivered
2937-631: The Federal Constitution and the Aboriginal Peoples Act, as well as decisions from the Privy Council, Australia, Canada, New Zealand, and the United States. That case was the first time where Orang Asli directly and expressly challenged a state taking of their land. The opinion held that: "the aborigines' common law rights include, inter alia, the right to live on their land as their forefathers had lived." The case
3026-585: The IACHR judgement and key precedents from other common law jurisdictions. The government entered into negotiations with the Maya communities, but ultimately refused to enforce the judgement. In 2008, The TMCC and TAA, and many individual alcaldes , filed a representative action on behalf of all the Maya communities of the Toledo District, and on 28 June 2010, CJ Conteh ruled in favor of the claimants, declaring that Maya customary land tenure exists in all
3115-669: The Maya villages of the Toledo District, and gives rise to collective and individual property rights under sections 3(d) and 17 of the Belize Constitution . A Botswana High Court recognized aboriginal title in Sesana and Others v Attorney General (2006), a case brought by named plaintiff Roy Sesana , which held that the San have the right to reside in the Central Kalahari Game Reserve (CKGR), which
3204-475: The Murujuga cultural landscape, the world's largest and most important collection of petroglyphs . Some of the Aboriginal rock carvings have been dated to more than 45,000 years old. The collection of standing stones here is the largest in Australia with rock art petroglyphs numbering over one million, many depicting images of the now extinct thylacine (Tasmanian tiger). Dampier Rock Art Precinct covers
3293-818: The Native Lands Act 1862, the Native Rights Act 1865 and the Native Lands Act 1865 which established the Native Land Court (today the Māori Land Court ) to hear aboriginal title claims, and—if proven—convert them into freehold interests that could be sold to Pākehā (New Zealanders of European descent). That court created the "1840 rule", which converted Māori interests into fee simple if they were sufficiently in existence in 1840, or else disregarded them. Symonds remained
3382-417: The Native Title Act, adopted strict requirements of continuity of traditional laws and customs for native title claims to succeed. In A-G for British Honduras v Bristowe (1880), the Privy Council held that the property rights of British subjects who had been living in Belize under Spanish rule with limited property rights, were enforceable against the Crown, and had been upgraded to fee simple during
3471-528: The Ngajarli Trail was completed in August 2020. Traditional owners working in collaboration with the government created a 700-metre (2,300 ft) universal boardwalk , along with interpretative signs . The Murujuga Aboriginal Corporation hopes to improve and enlarge facilities for visitors and to help them appreciate the cultural significance of the site. 20°34′52″S 116°48′29″E / 20.581°S 116.808°E / -20.581; 116.808 Dampier Archipelago The Dampier Archipelago
3560-432: The Northern Burrup for the preservation of its renowned Aboriginal heritage and environmental values", no comment was made on the amount of rock art affected by development and recreational activities. In 1998, the Ngarluma and Yindjibarndi people had a joint native title claim which included the Murujuga cultural landscape. The North West Shelf Joint Venture, which includes the Karratha Gas Plant, subsequently entered into
3649-450: The Privy Council issued many opinions confirming the existence of aboriginal title, and upholding customary land claims; many of these arose in African colonies. Modern decisions have heaped criticism upon the views expressed in Southern Rhodesia . The requirements for establishing an aboriginal title to the land vary across countries, but generally speaking, the aboriginal claimant must establish (exclusive) occupation (or possession) from
Murujuga - Misplaced Pages Continue
3738-402: The Treaty, and facilitate settlements . Te Weehi v Regional Fisheries Office (1986) was the first modern case to recognize an aboriginal title claim in a New Zealand court since Wi Parata , granting non-exclusive customary fishing rights. The Court cited the writings of Dr Paul McHugh and indicated that whilst the Treaty of Waitangi confirmed those property rights, their legal foundation
3827-420: The United States ), and customary title (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. Aboriginal title
3916-403: The World - the only such site in Australia - because of continued mismanagement of the heritage and conservation values of the Burrup. In January 2020, the Australian Government lodged a submission for the Murujuga cultural landscape to be included as an Australian entry to the World Heritage Tentative List. In November 2021, around 50 local people rallied at Karratha to protest against one of
4005-406: The Yaburara are reported to have been killed. 20°32′S 116°36′E / 20.533°S 116.600°E / -20.533; 116.600 Native title Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty to that land by another colonising state. The requirements of proof for
4094-412: The beaches, and customary fishing rights on the foreshore. The Limitation Act 1950 established a 12-year statute of limitations for aboriginal title claims (6 years for damages), and the Maori Affairs Act 1953 prevented the enforcement of customary tenure against the Crown. The Treaty of Waitangi Act 1975 created the Waitangi Tribunal to issue non-binding decisions, concerning alleged breaches of
4183-466: The biggest oil and gas developments ever undertaken in Australia, by Woodside Petroleum and BHP , known as the Scarborough project (Scarborough being the name of the gas field, 375 km (233 mi) off the Pilbara coast). The project includes a floating production unit, the drilling of 13 wells, and a 430 km (270 mi) pipeline to transport the gas to the onshore Pluto LNG processing facility near Karratha, which will be expanded. Production
4272-416: 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. Other important Privy Council decisions include In re Southern Rhodesia (1919) and Amodu Tijani v. Southern Nigeria (Secretary) (1921). The former rejected a claim for aboriginal title, noting that: Some tribes are so low in
4361-457: The complaint of the Richtersveld peoples, whose land was seized by a government owned diamond mining operation . The Supreme Court of Appeal disagreed, citing Mabo and Yorta Yorta , but held that the aboriginal title had been extinguished. Whether the precedent will be the start of further land rights claims by indigenous peoples is an open question, given the cut-off date of 1913 in the Restitution Act. The case ultimately did not lead to
4450-405: The control of the Council". Opposition to such confiscation was met by force, as at Opuatia in 1894. A series of Acts, beginning a year after the Treaty of Waitangi with the Land Claims Ordinance 1841, allowed the government to take and sell 'Waste Lands'. Favorable court decisions turned aboriginal title litigation towards the lake beds, but the Māori were unsuccessful in claiming the rivers
4539-400: The degree to which claimants are able to satisfy the standard of proof for recognition. In particular, the content of aboriginal title may be tied to the traditions and customs of the indigenous peoples, and only accommodate growth and change to a limited extent. Aboriginal title can be extinguished by the general government, but again, the requirement to do this varies by country. Some require
SECTION 50
#17327935952094628-427: The entire archipelago, while the Murujuga National Park lies within Burrup. Concern around the ecological, historical, cultural and archaeological significance of the area has led to a campaign for its protection, causing conflict with industrial development on the site. The preservation of the Murujuga monument has been called for since 1969, and in 2002 the International Federation of Rock Art Organizations commenced
4717-432: The exclusion of black African communities, an approach deemed detrimental to the spirit of national unity. The legacy of the Natives Land Act also means that few communities retain relationships with the land of which they held before 1913. Taiwanese indigenous peoples are Austronesian peoples , making up a little over 2% of Taiwan 's population; the rest of the population is composed of ethnic Chinese who colonised
4806-408: The first time in Superintendent of Lands v. Madeli bin Salleh . The Federal Court endorsed Mabo and Calder , stating that "the proposition of law as enunciated in these two cases reflected the common law position with regard to native titles throughout the Commonwealth." The High Court of Kuching held in 2010, for the first time, that NCL may be transferred for consideration between members of
4895-521: The force of law. Malaysian court decisions from the 1950s on have held that customary lands were inalienable . In the 1970s, aboriginal rights were declared to be property rights, as protected by the Federal Constitution. Decisions in the 1970s and 1980s blocked state-sanctioned logging on customary land. In 1997, Mokhtar Sidin JCA of the Jahore High Court became the first Malaysian judge to acknowledge common law aboriginal title in Adong bin Kuwau v. Kerajaan Negeri Johor . The High Court cited
4984-449: The foreshore in Land Court. The Court also indicated that customary aboriginal title interests (non-territorial) might also remain around the coastline. The Foreshore and Seabed Act 2004 extinguished those rights before any lower court could hear a claim to either territorial customary title (the Maori Land Court) or non-territorial customary rights (the High Court's inherent common law jurisdiction). That legislation has been condemned by
5073-492: The fragmentation of the rock varnish and patina. Researchers suggest reducing emissions is essential to protect the rock art for future generations. On 1 July 2020, scientists published a study reporting on the finding of Australia's first ancient Aboriginal underwater archaeological sites at two locations off the Burrup Peninsula. The 269 artefacts found at Cape Bruguieres, as well as an 8,500-year-old underwater freshwater spring at Flying Foam Passage off Dampier are described in
5162-418: The gap between Spanish and British sovereignty. This decision did not involve indigenous peoples, but was an important example of the key doctrines that underlie aboriginal title. In 1996, the Toledo Maya Cultural Council (TMCC) and the Toledo Alcaldes Association (TAA) filed a claim against the government of Belize in the Belize Supreme Court , but the Court failed to act on the claim. The Maya peoples of
5251-442: The government owed a duty analogous to a fiduciary duty toward the Māori. This cleared the way for a variety of Treaty-based non-land Māori customary rights. By this time the Waitangi Tribunal in its Muriwhenua Fishing Report (1988) was describing Treaty-based and common law aboriginal title derived rights as complementary and having an 'aura' of their own. Circa the Te Ture Whenua Māori Act 1993 , less than 5% of New Zealand
5340-408: The group was known as Murujuga by the Yaburara people. The first British settlers renamed it Dampier Island and it was later officially renamed Burrup Peninsula . The Yinidbarndi , Yaburara , Mardudhunera , and Woon-goo-tt-oo peoples have lived in the area for approximately 50,000 years. In 1868, the area was the site of the Flying Foam massacre , in which between 20 and 150 members of
5429-424: The guiding principle, until Wi Parata v the Bishop of Wellington (1877). Wi Parata undid Symonds , advocating the doctrine of terra nullius and declaring the Treaty of Waitangi unenforceable. The Privy Council disagreed in Nireaha Tamaki v Baker , and other rulings, but courts in New Zealand continued to hand down decisions materially similar to Wi Parata . The Coal Mines Amendment Act 1903 and
SECTION 60
#17327935952095518-437: The inclusion of the Aboriginal title in South African doctrine. Legal scholars allege that this is because the application of terms like 'indigenous' and 'Aboriginal' in a South African context would lead to a number of contradictions. The identity of the indigenous groups in South Africa is not self-evident. The adoption of a strict definition, including only communities descended from San and Khoekhoe people, would entail
5607-456: The independent existence of common law aboriginal title. Native Customary Rights (NCR) and Native Customary Land (NCL) are provided for under section 4(2) of the National Land Code 1965, the Sarawak Land Code 1957, the respective provisions of the National Land Code (Penang and Malacca Titles) Act 1963, and the Customary Tenure Enactment (FMS). Rajah's Order IX of 1875 recognized aboriginal title by providing for its extinguishment where cleared land
5696-401: The island became an artificial peninsula when it was connected to the mainland by a causeway for a road and railway. In 1979 Dampier Peninsula was renamed Burrup Peninsula after Mt Burrup, the highest peak on the island, which had been named after Henry Burrup, a Union Bank clerk murdered in 1885 at Roebourne . The peninsula is a unique ecological and archaeological area since it contains
5785-414: The island from the 17th century onward. From 1895 Taiwan was under Japanese rule and indigenous rights to land were extinguished. In 1945, the Republic of China (ROC) took control of Taiwan from the Japanese Empire ; a rump Republic of China was established on Taiwan in 1949 after the Communists won the Chinese Civil War . From then, indigenous people's access to traditional lands was limited, as
5874-436: The legislature to be explicit when it does this, others hold that extinguishment can be inferred from the government's treatment of the land. In Canada, the Crown cannot extinguish aboriginal title without the explicit prior informed consent of the proper aboriginal title holders. New Zealand formerly required consent, but today requires only a justification, akin to a public purpose requirement. Jurisdictions differ on whether
5963-410: The prevailing law until Calder v. British Columbia (Attorney General) (1973). All seven of the judges in Calder agreed that the claimed Aboriginal title existed, and did not solely depend upon the Royal Proclamation of 1763 . Six of the judges split 3–3 on the question of whether Aboriginal title had been extinguished. The Nisga'a did not prevail because the seventh justice, Pigeon J, found that
6052-432: The provinces, and provincial law still applies. In 2008, Japan gave partial recognition to the Ainu people . However, land rights were not given for another eleven years. In 2019, Japan fully recognised the Ainu people as the indigenous people of Japan and gave them some land rights if requested. Malaysia recognised various statutory rights related to native customary laws ( adat ) before its courts acknowledged
6141-553: The recognition of native title . 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, the Doctrine of Continuity , and the Recognition Doctrine . 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
6230-488: 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 , and that it may be held either individually or collectively . Aboriginal title is also referred to as indigenous title , native title ( in Australia ), original Indian title ( in
6319-403: The same community, as long as such transfers are not contrary to customary law . New Zealand was the second jurisdiction in the world to recognize aboriginal title, but a slew of extinguishing legislation (beginning with the New Zealand land confiscations ) has left the Māori with little to claim except for river beds , lake beds , and the foreshore and seabed . In 1847, in a decision that
6408-468: 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. 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,
6497-532: The site was suitable for listing on the National Heritage List . The Western Australian state government continued to support development at the site, arguing a lack of cost-effective alternative sites and that geographical expansion of facility areas would be extremely limited. Former conservative party Resources Development Minister Colin Barnett temporarily supported campaigns to save rock art in this area. The Australian federal government
6586-524: The site, an electrician for Woodside claimed the company had crushed 10,000 petroglyphs for road fill, at a time of international outrage over the Taliban destruction of the Bamiyan buddhas . The oldest representation of a human face was also destroyed. The rock pools were filled with green scum, the eucalypts of the area dying, the fluming of escaping natural gas, from faulty piping, rises as high as
6675-450: The state is required to pay compensation upon extinguishing aboriginal title. Theories for the payment of compensation include the right to property , as protected by constitutional or common law, and the breach of a fiduciary duty . Australia did not experience native title litigation until the 1970s, when Indigenous Australians (both Aboriginal and Torres Strait Islander people) became more politically active, after being included in
6764-503: The study. Estimated to be thousands of years old, the artefacts include hundreds of stone tools and grinding stones , evidence of life before sea levels rose between 7,000 and 18,000 years ago, after the last ice age . The Australian Archaeological Association described the research as "highly significant". The report was the result of four years of work by a team of archaeologists , rock art specialists, geomorphologists , geologists , specialist pilots and scientific divers, funded by
6853-691: The traditional owners to the UN in Geneva , which stated "The rock art archives our lore. It is written not on a tablet of stone, but carved into the ngurra , which holds our Dreaming stories and Songlines.". She also wrote to government ministers Linda Burney and Tanya Plibersek . Along with mechanical damage to the rock art from industrial land clearance for roads, pipelines, power lines, and other areas, Murujuga rock art has been damaged by industrial pollution . Acidic dust pollution combines with water to form acids that dissolute manganese and iron compounds, causing
6942-504: The world's largest collection of ancient 40,000 year old rock art ( petroglyphs ). The region is sometimes confused with the Dampier Peninsula , 800 kilometres (500 mi) to the north-east. Most Murujuga rock art is on 2.7 billion year old igneous rocks . The rock art was made by etching away the outer millimetres of red-brown iron oxide, exposing pale centimetre-thick weathered clay. The underneath very hard igneous rock
7031-795: Was heritage-listed in the Australian national heritage in 2007. On 7 July 2008, the Australian Government placed 90% of the remaining rock art areas of the Dampier Archipelago on the National Heritage List. Campaigners continued to demand that the Australian Government include all of the undisturbed areas of the Dampier Archipelago on the World Heritage List . According to the Philip Adams radio show on Radio National , one worker on
7120-403: Was abandoned. Rajah's Order VIII of 1920 ("Land Order 1920") divided "State Lands" into four categories, one of them being "native holdings", and provided for the registration of customary holdings. The Aboriginal People's Act 1954 creates aboriginal areas and reserves, also providing for state acquisition of land without compensation. Article 160 of the Federal Constitution declares that custom has
7209-516: Was decided in the wake of the Indian Act (1876), which laid out an assimilationist policy towards the Aboriginal peoples in Canada ( First Nations , Inuit , and Métis ). It allowed provinces to abrogate treaties (until 1951), and, from 1927, made it a federal crime to prosecute First Nation claims in court, raise money, or organize to pursue such claims. St. Catharines was more or less
7298-627: Was divided on the issue. One reason to support site protection is that national heritage bodies support protection for the area, and the governments at national and state level have been of opposing political parties. On the other hand, the government was reluctant to interfere with the economic prosperity generated by the Western Australian economy. The protest campaign against development garnered popular support: 42,000 personal messages were lodged with Woodside's Directors at their Annual General Meeting. Following shareholders questions at
7387-539: 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. Legislated Indigenous land rights often follow from
7476-544: Was held as Māori customary land. In 2002, the Privy Council confirmed that the Maori Land Court, which does not have judicial review jurisdiction, was the exclusive forum for territorial aboriginal title claims (i.e. those equivalent to a customary title claim) In 2003, Ngati Apa v Attorney-General overruled In Re the Ninety-Mile Beach and Wi Parata , declaring that Māori could bring claims to
7565-564: Was not appealed to the Privy Council, the Supreme Court of the colony of New Zealand recognized aboriginal title in R v Symonds . The decision was based on common law and the Treaty of Waitangi (1840). Chapman J went farther than any judge—before or since—in declaring that aboriginal title "cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers". The New Zealand Parliament responded with
7654-403: Was semi-nomadic and did not create settlements on that territory. It also stated that governments must have consent from First Nations which hold Aboriginal title in order to approve developments on that land, and governments can override the First Nation's wishes only in exceptional circumstances. The court reaffirmed, however, that areas under Aboriginal title are not outside the jurisdiction of
7743-459: Was the common law principle of continuity. The Crown did not appeal Te Weehi which was regarded as the motivation for Crown settlement of the sea fisheries claims (1992). Subsequent cases began meanwhile—and apart from the common law doctrine—to rehabilitate the Treaty of Waitangi, declaring it the "fabric of New Zealand society" and thus relevant even to legislation of general applicability. New Zealand Maori Council v Attorney-General held that
7832-655: Was upheld on appeal, but the Federal Court did not write an opinion. Later High Court and Court of Appeal decisions built upon the foundation of Adong bin Kuwau . However, the ability for indigenous peoples to bring such suits was seriously limited by a 2005 ruling that claims must be brought under O. 53 RHC , rather than the representative action provision. In 2007, the Federal Court of Malaysia wrote an opinion endorsing common law aboriginal title for
7921-458: Was violated by their 2001 eviction. The decision quoted Mabo and other international case law, and based the right on the San's occupation of their traditional lands from time immemorial . The court described the right as a "right to use and occupy the lands" rather than a right of ownership. The government has interpreted the ruling very narrowly and has allowed only a small number of San to re-enter
#208791