Historical indigenous peoples' land claims: a comparative and international approach to the common law doctrine on indigenous title

Article


Gilbert, J. 2007. Historical indigenous peoples' land claims: a comparative and international approach to the common law doctrine on indigenous title. International & Comparative Law Quarterly. 56 (3), pp. 583-611. https://doi.org/10.1093/iclq/lei183
TypeArticle
TitleHistorical indigenous peoples' land claims: a comparative and international approach to the common law doctrine on indigenous title
AuthorsGilbert, J.
Abstract

Within common law systems a body of jurisprudence has developed according to which indigenous peoples' land rights have been recognized based upon historical patterns of use and occupancy and corresponding traditional land tenure. Looking at the emerging common law doctrine on aboriginal or native title, this article examines how legal institutions are building a theory on historical land claims through the recognition of indigenous laws deriving from prior occupation. The article analyses how the common law doctrine builds a bridge between past events and contemporary land claims. The aim of this article is to examine to what extent the common law doctrine proposes a potential model for the development of a legal theory on the issue of indigenous peoples' historical land claims. In doing so the article analyses how the common law doctrine compares with international law when dealing with historical arguments by focusing on issues of intertemporal law and extinguishment.

Keywordsindigenous peoples, common law, reparations, human rights
Research GroupLaw and Politics
PublisherCambridge University Press
JournalInternational & Comparative Law Quarterly
ISSN0020-5893
Publication dates
PrintJul 2007
Publication process dates
Deposited20 Jan 2010
Output statusPublished
Publisher's version
Digital Object Identifier (DOI)https://doi.org/10.1093/iclq/lei183
LanguageEnglish
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