Maynooth University Department of Law

Student Name: Alexandra Brezeanu

Student Number: 20402014

Course of Study: LLB

Year of Study: 3 rd

Module Code: LW352

Module Name: Land Law

Lecturer: Neil Maddox

Wordcount: 3,973

Submission Date: 7 th December (Resubmitted due to incorrect

footnotes on the 9th December)

[Native Land Title Claims in Common Law Courts]

I confirm that this is entirely my own work.

Signature: Alex B
Since the beginning of time, property and land ownership have been contentious issues.
Certain land ownership rights developments in nations including Australia, New Zealand, the
United States, and Canada have led to overall increased uncertainty. 1 In order to get a better
understanding of Native Land Title Claims and the approach of the Common Law Courts to
such, indigenous peoples and their belief system will be explored, followed by a thorough
evaluation of the principles known as the “Doctrine of Discovery” and ‘Terra Nullius’.
Furthermore, the four different jurisdictions listed above, which include Australia, New
Zealand, the United States and Canada will be analysed, by assessing different court cases
which came about that have been dealt with by the courts there , and the techniques they used
in these, while simultaneously observing the legislation which was brought in, in order to
ensure further fairness to indigenous peoples which inhabited the lands previously. Lastly, the
fact that the common law court system is not fully constructive and beneficial in dealing with
native land title claims will be looked at in order to highlight the fact that there is still a long
way to go until the approaches which the common law courts took can be considered as fully
effective.

Indigenous Peoples:
As a result of a movement spearheaded by indigenous peoples, civil society, international
organizations, and States at the national, regional, and global levels during the past three
decades, the rights of indigenous peoples have emerged as a significant element of
international law and policy.2 Over 370 million indigenous people live in 70 different nations
throughout the world. They maintain social, cultural, economic, and political traits that are
different from those of the dominant societies in which they dwell through observing
distinctive traditions. They still exhibit distinctive traits that set them apart from other groups
of the country's population. Indigenous peoples have distinctive languages, belief systems
and knowledge systems. They also provide vital understanding of the techniques used in the
sustainable management of natural resources. They have a unique relationship with and
utilization of their ancestral territory. For their collective physical and cultural existence as

1
P Wilson, P Du Plessis and J Pienaar, “Land Claims of Indigenous Peoples—the Impact on Property
Values: A Comparative Study on South Africa and Australia” (2000) 8 Journal of Real Estate Literature
35.

2
Office of the United Nations High Commissioner for Human Rights, “Indigenous Peoples and the
United Nations Human Rights System”
<https://www.ohchr.org/sites/default/files/Documents/Publications/fs9Rev.2.pdf> accessed November
25, 2022.
peoples, their ancestral land is of crucial importance. Based on their historic beliefs, visions,
needs, and goals, they hold their own unique and varied views of growth.3

The Doctrine of Discovery/ Terra Nullius:

The Discovery Doctrine is a concept of public international law, which has been referred to in
many cases involving Native Land Title Claims. It is based on a collection of papal bulls
issued in the fifteenth century that granted Christian explorers the right to lay claim to the
territories they "found" and to claim them for their Christian monarchs. Any territory not
inhabited by Christians may be "found," taken possession of, and used for profit. They might
be spared if the "pagan" residents could be converted. If not, they might be executed or
become slaves.4 An example of such case is the United States case of Johnson v. M'Intosh, 5
which managed to clearly portray just what this doctrine actually meant.

Chief Justice John Marshall was the one who explained the Doctrine of Discovery precisely.
He stated in part 573 of the judgement that because they were all pursuing essentially the
same goal, it was essential to establish a principle that everyone would accept as the law by
which the right of acquisition, which they all asserted, should be regulated as between
themselves, in order to avoid conflicting settlements and subsequent war with one another.
This idea said that discovery conferred title on the government against all other European
governments, which title may be finalized by possession, to those by whose subjects or by
whose authority it was made. He then continued on by saying that the nation that made the
discovery was given the exclusive right to buy the land from the natives and build settlements
on it due to the exclusion of all other Europeans, no European could infringe upon that
right. In essence, the answer which was arrived to by the end of this case was that a
discovering sovereign had the sole authority to exterminate Native American interests in their
territories through fair war or acquisition, 6 and also, that the courts of the United States will

3
O Chakrabarti and M Masaquiza
<https://www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf > accessed November 25,
2022.

4
“The Doctrine of Discovery and Its Enduring Impact on Indigenous Peoples”
<https://www.onondaganation.org/mediafiles/pdfs/un/Doctrine%20of%20Discovery.pdf > accessed
November 26, 2022.

5
Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823).
not recognize a title to land under grants to private individuals made by Native American
tribes or nations northwest of the Ohio River between 1773 and 1775.7

The Doctrine continues to restrict Indigenous Peoples' and their governments' human,
sovereign, commercial, and property rights and is not merely a fascinating artifact of world
history. It is still a valid principle in many nations. European countries embraced the Doctrine
to support their aspirations to build global empires and acquire vast wealth. These
acquisitions and the European nations' ambitions were primarily justified by ethnocentric
claims of cultural, racial, governmental, and religious superiority over the rest of the globe. 8

The phrase "terra nullius", which directly translates to “land belonging to nobody”, 9 tries to
describe how Europeans frequently justified taking Indigenous territories. In practice,
Europeans frequently considered Indigenous Peoples' lands in the New World as if they were
uninhabited, belonged to no one, and might, therefore, be taken by whoever discovered them.
Even though the "Doctrine of Discovery" and despite the fact that these are two different
topics, it seems that in recent years they have almost become interchangeable. 10 The
protection of indigenous peoples’ rights has typically been regarded to be inferior than that of
their colonising counterparts until relatively recently, in part because of the application of
notions like terra nullius.11 In order to get a better understanding of this principle, the
application of this in Australia will be looked at in great detail.

Australia:

6
Kades, Eric, "History and Interpretation of the Great Case of Johnson v. M'Intosh" (2001). Faculty Publications. 50. <
https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1050&context=facpubs > accessed 25 November 2022.

7
Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823).

8
RJ Miller, “The Doctrine of Discovery: The International Law of Colonialism” (2019) 5 The Indigenous
Peoples’ Journal of Law, Culture & Resistance 35.

9
“Terra Nullis” (Terra nullius)
<http://homepages.gac.edu/~lwren/AmericanIdentititesArt%20folder/AmericanIdentititesArt/Terra
%20Nullius.html> accessed November 25, 2022.

10
“The ‘Doctrine of Discovery’ and Terra Nullius: A Catholic Response” (Centre de Cultura
Contemporània de Barcelona2017) <https://www.cccb.ca/wp-content/uploads/2017/11/catholic-
response-to-doctrine-of-discovery-and-tn.pdf> accessed November 26, 2022.

11
GR Schiveley, “Negotiation and Native Title: Why Common Law Courts Are Not Proper Fora for
Determining Native Land Title Issues” (2000) 33 Vanderbilt Journal of Transnational Law 427.
The legal principle known as Terra Nullius claimed Terra Australia in 1770 as land for
Britain. Indigenous customary law existed in Australia for millennia before common law was
applied there. Through songlines, this law, including the laws governing property and land
ownership, was passed down from one generation to the next. Common law was imposed as a
result of colonisation, a legal system that disregarded the significance of Indigenous peoples'
connections to the land. Due to the principle of Terra Nullius being applied to Australia,
Indigenous peoples' legal systems ended up being forced to be disregarded or dismissed. 12The
landmark case of Mabo v Queensland13 in 1992 in Australia opened the floodgates for native
peoples to pursue legal action over land titles that had been thought to be settled for
decades,14 as this case resulted in clarification on the ongoing uncertainty that Australia was
“Terra Nullius”.15 Justice Brennan, who delivered the majority judgement in this case, made
several conclusions in part 97 of the judgment, which were as followed: within the meaning
of that term in s.5 of the Land Act 1962-1988, land in the Murray Islands is not Crown land
within that meaning. Next, it was listed that the Meriam people have the right to own,
occupy, utilise, and enjoy the island of Mer in respect to other people, and lastly that that the
title of the Meriam people is subject to the power of the Queensland Parliament and the
Queensland Governor in Council to revoke such title by lawful use of their respective
powers, provided that any such exercise does not infringe Commonwealth laws. It was also
determined in this case that native title draws from proof that a certain group has the right to
use or occupy certain land.16In essence, the most important conclusion to this case was that it
was clearly held that Australia was not to be considered “Terra Nullius”. 17 This recognition of
native title at common law was something which has never been seen before this case, and

12
N Higgins, “Songlines and Land Claims; Space and Place” (2020) 34 International Journal for the
Semiotics of Law - Revue internationale de Sémiotique juridique 723.

13
Eddie Mabo vs. The State of Queensland (No 2) 175 CLR 1.

14
GR Schiveley, “Negotiation and Native Title: Why Common Law Courts Are Not Proper Fora for
Determining Native Land Title Issues” (2000) 33 Vanderbilt Journal of Transnational Law 427.

15
E Wensing, “Comparing Native Title and Anglo-Australian Land Law” (dissertation The Australia
Institute 1999) 1.

16
GD Meyers and J Mugambwa, “THE MABO DECISION: AUSTRALIAN ABORIGINAL LAND
RIGHTS IN TRANSITION” (1993) 23 Environmental Law 1203.

17
L Behrendt, “The Long Path to Land Justice” (The Eddie Koiki Mabo Lecture 2006November 27,
2022).
overall, this case also had a positive impact on the rights and recognition of indigenous
peoples in Australia in totality.

Due to the floodgates being open as a result of the outcome of the Mabo case, many cases
came about, which revolved around indigenous peoples attempting to claim back native land.
One such case is The Wik People v. Queensland (1996).18In part 190 of the judgement, it was
held by the Australian High Court that native title can co-exist with a pastoral interest.

Very soon after the conclusion of this lengthy case, the Native Title Act 199319was
implemented. The objectives of this act were stated in part 3, which stated that the main
objectives were as follows: to provide for the recognition and protection of native title, to
establish ways in which future dealings affecting native title may proceed and to set standards
for those dealings, to establish a mechanism for determining claims to native title and finally,
to provide for, or permit, the validation of past acts, and intermediate acts, invalidated
because of the existence of the native title. After the enactment of this, many had doubts
about its validity and its constitutionality however, 20 these doubts were distinguished by the
case of Western Australia v Commonwealth (Native Title Act Case) [1995].21 It can be seen
clearly by analysing Australia when it comes to Native Land Title Claims in the Common
Law Courts that its body of common law governing native title issues is continuously
developing.22

New Zealand:

Common law aboriginal title is mainly concerned with how exactly Crown sovereignty
affects the existing land rights of the Maori.23When it comes to the indigenous group in New
Zealand known as Māori, their territorial rights were recognised at the beginning of British

18
The Wik People v. Queensland (1996) 187 CLR 1.
19
Native Title Act 1993.

20
“25 YEARS OF NATIVE TITLE RECOGNITION” <http://www.nntt.gov.au/Documents/Native
%20title%20becomes%20law.pdf> accessed November 27, 2022.

21
Western Australia v Commonwealth (Native Title Act Case) [1995] HCA 47.

22
E Wensing, “Comparing Native Title and Anglo-Australian Land Law” (dissertation The Australia
Institute 1999) 1.

23
PG McHugh, “ABORIGINAL TITLE IN NEW ZEALAND: A RETROSPECT AND PROSPECT”
(2004) 2 New Zealand Journal of Public and International Law 139.
colonialism by the 1840 Treaty of Waitangi.24 This treaty recognised the jurisdictional aspect
of the Maori people in the Maori translated version of it,25 as both English and Maori versions
were available. The two Treaty versions are not precise translations of one another, and this
has led to a great deal of ambiguity and disagreement in Treaty interpretation.26 This treaty
had three different articles, which included: that Māori hand over the sovereignty of New
Zealand to Britain, that exchange for complete ownership rights over their lands, forests,
fisheries, and other properties as well as the rights and privileges of British subjects, Maori
grant the Crown the sole right to purchase any land they desire to sell.27 However, the Treaty
of Waitangi has never been implemented into the Constitution in New Zealand, meaning that
its standing as a legal document is, at best, debatable.28 To add to this, in the Treaty of
Waitangi, the government precisely promised to allow Maori to own and control their lands
and their existence. However, this was not what happened. After this treaty was signed, many
problems came about, including confiscation of land which leaded to people having no place
to reside at, alongside with war.29 Due to this being the case, The Treaty of Waitangi Act
(1975)30 was brought in. This act was a positive step towards the recognition of the Treaty in
New Zealand. This act established what is known as the Waitangi Tribunal. This new tribunal
was brought about with the purpose of making recommendations on claims which relate to
the overall application of the treating, while simultaneously deciding whether certain matters
are inconsistent with any principles encompassed in the Treaty.31

24
K McNeil, “Indigenous Territorial Rights in the Common Law” (2016) 12 Osgoode Legal Studies
Research Paper Series.

25
K McNeil, “Indigenous Territorial Rights in the Common Law” (2016) 12 Osgoode Legal Studies
Research Paper Series.

26
M Barrett and K Connolly-Stone, “THE TREATY OF WAITANGI AND SOCIAL POLICY ”.

27
A Ward, “ Interpreting the Treaty of Waitangi: The Maori Resurgence and Race Relations in New
Zealand” (1991) 3 The Contemporary Pacific 85.

28
M Barrett and K Connolly-Stone, “THE TREATY OF WAITANGI AND SOCIAL POLICY”.

29
“Waitangi Tribunal Te Rōpū Whakamana i Te Tiriti o Waitangi” (Section 4 : What happened after the
Treaty was signed? | Waitangi Tribunal September 19, 2016)
<https://waitangitribunal.govt.nz/publications-and-resources/school-resources/treaty-past-and-present/
section-4/> accessed November 30, 2022.

30
Treaty of Waitangi Act 1975.
The case of New Zealand Maori Council v. AG [1987]32, also known as the Lands case, is a
landmark case in New Zealand. This is due to the fact that it articulated and interpreted the
existing principles of the Treaty successfully. 33 The first principle is laid out in part 673 of
the judgement, by Richardson J, where he stated that “the Treaty of
Waitangi must be viewed as a solemn compact between two identified parties, the Crown and
the Maori, through which the colonisation of New Zealand was to become possible. For its
part the Crown sought legitimacy from the indigenous people for its acquisition of
sovereignty and in return it gave certain guarantees.” This meant that sovereignty was to
established in exchange for guarantees such as general protection. The second principle
mentioned by Cooke P in this judgement is that The Pakeha and Maori Treaty partners were
expected under the Treaty of Waitangi's principles to act toward one another reasonably and
in good faith due to the fact that the Treaty represented a partnership between races. This
indicated that the Treaty gave rise to a partnership. The third principle is referred to by Cooke
P in part 664 of the judgement, where he stated that “the duty of the Crown is not merely
passive but extends to active protection of Maori people in the use of their lands and waters
to the fullest extent practicable.” This made a clear reference to the fact that the Crown must
ensure to protect Maori people to the best of their abilities. This case was extremely
complicated for the Courts to deal with at the time. However, this difficulty manages to
successfully highlight the need for more effort and attention to be put into the attempt to get a
more clear understanding of the exact ins and outs of the Treaty of Waitangi.

Canada:

It can be said that in accordance with Aboriginal laws and systems, wherever they could be
determined, courts should have recognised and given effect to Aboriginal peoples'
entitlements to land as a matter of Imperial constitutional common law, regardless of how
English land law was received in Canada's common law jurisdictions.34

31
“Treaty of Waitangi Act 1975 ”(United Nations)
<https://unterm.un.org/unterm/Display/record/UNHQ/Treaty_of_Waitangi_Act_1975/
A7F38FB277F3D2B785256E12005772CB> accessed November 30, 2022.

32
New Zealand Maori Council v. AG [1987] 1 NZLR 641.

33
“The Significance of the Lands Case for Law and Society” (The Beehive June 30, 2007)
<https://www.beehive.govt.nz/speech/significance-lands-case-law-and-society> accessed November 30,
2022.
In the Supreme Court case of Delgamuukw v. British Columbia [1997],35it was laid out in part
117 of the judgement that the area of Aboriginal title can be broken down into two segments,
which include that firstly, that aboriginal title encompasses the right to exclusive use and also
occupation of the land held pursuant to that title for many purposes, which do not require to
be related to Aboriginal practices, traditions and customs specifically, and secondly, that the
protected uses of the land must not be conflicting with the character of the Aboriginal group’s
attachment to their land. It was also explained in the judgements in parts 113 to 115 that
Aboriginal title is considered to be sui generis, that this can be used as the main principle in
order to aid with numerous dimensions of that specific title. These dimensions include its
inalienability, its source and also the fact that it is held communally. This case opened up the
floodgates for cases to be brought in by Aboriginal peoples in terms of their native land titles.

In the case of Tsilhqot’in Nation v British Columbia [2014],36 it was stated in the judgement
delivered by the Chief Justice that in order for Aboriginal title to be established, the
“occupation” has to be sufficient, continuous and exclusive, backing up the case of
Delgamuukw. It was stated that when determining what composes sufficient occupation,
Aboriginal culture and practices must be taken into account, while simultaneously comparing
them in a culturally sensitive way with what is usually needed at the common law level to
establish Aboriginal title on the basis of occupation. The fact that Aboriginal title means that
one has the exclusive right to choose how their land is managed and also the right to benefit
from how the land is managed, however this is subject to restrictions that the uses have to
maintain consistency with the Aboriginal group nature of the interests and also for the use of
the specific land by future generations. In the conclusion of the judgement, it was stated that
the appeal would be allowed and that a declaration of Aboriginal title over the area at issue
will be grated, as requested by the Tsilhqot’in. It was then elaborated that that British
Columbia breached its duty to consult owed to the Tsilhqot’in through their land use planning
and forestry authorizations. Section 35(1) of the Constitution Act, 1982, 37 recognises

34
B Donovan, “Common Law Origins of Aboriginal Entitlements to Land ”(2003) 29 Manitoba Law
Journal 290.

35
Delgamuukw v. British Columbia [1997] 3 SCR 1010.

36
Tsilhqot’in Nation v British Columbia [2014] 2 SCR 257.

37
The Constitution Act, 1982.
Aboriginal title in Canada, where it states that “the existing aboriginal and treaty rights of the
aboriginal peoples of Canada are hereby recognized and affirmed.” This allows for
Aboriginal peoples to have a constitutional right to their land.38

Although the Canadian courts have eventually made positive steps in order to ensure that
Aboriginal peoples have access to their lands and that they are presented with the fair amount
of equality overall in terms of their access and possession Native Land, the Courts could still
make an attempt in order to ensure that principles related to native land title are applied in a
more universal way for all those affected.39

America:

There are many common law cases which came about in America over time, which aided
with the understanding of Native land title to a better extent. The case of Johnson v. M'Intosh
which was discussed earlier in order to further explain the doctrine of discovery. This case
was the first to make a remark about aboriginal title. Part 574 of the judgement, it stated that
in the establishment of a relationship between the discoverer and the natives, the rights of the
original inhabitants, which were the natives, were not entirely disregarded, but were impaired
to a significant extent. It then went on further to lay out that the natives were considered to be
the rightful inhabitants of the land, including a legal and just claim to keep ownership of it,
alongside with using it based on their own judgement. However, the initial fundamental
principle, which was that discovery provided exclusive title to those who made it, resultantly
reduced their rights to full sovereignty as separate nations and denied them the ability to
dispose of the land as they saw fit. According to case law, the fundamental characteristic of
native title is that it is a tribal right of occupancy and possession, with the sovereign owning
complete legal title.40

38
JY Henderson, “PROVING A CONSTITUTIONAL RIGHT TO THE LAND FOR ABORIGINAL
PEOPLES OF CANADA” <https://fngovernance.org/wp-content/uploads/2020/09/proof.pdf> accessed
November 30, 2022.

39
K Luskie, “THE RELATIONSHIP BETWEEN THE NEW ZEALAND CROWN AND MĀORI: A
FUTURE FOR FIDUCIARY OBLIGATIONS?” (dissertation University of Otago 2010) 1.

40
R Erickson, “Aboriginal Land Rights in the United States and Canada” (1984) 60 North Dakota Law
Review 108.
The case of Cherokee Nation v Georgia further backs up what was said in the Johnson case in
section 48 of the judgement,41 where it is clearly depicted that Native Americans have the
right to occupancy which were incapable of alienation, or also of being held without the
government's consent by any means other than by common right.

Soon after this, the case Worcester v Georgia came about,42 which further elaborated on the
topic of native land title. It was said by Marshall CJ that the treaties currently in place
between the United States and the Cherokees recognize their right to exist as a sovereign
nation and to control all people who have settled on their land, free from any right of
legislative interference from the various states that make up the United States of America. He
then made it clear in part 559 that this document gives Congress the authority to declare war
and peace, to make treaties, and to control trade with other countries, among the states, and
with Native tribes. Therefore, the Cherokee Nation is a distinct community that has its own
defined territory, outside of which Georgian laws have no legal standing. Only the Cherokees
themselves, or those who abide by treaties and congressional acts, have the right to join the
Cherokee Nation. By virtue of our Constitution and regulations, the United States
government had sole control over all interactions with this nation.

Despite the result of that case which established the fact that States did not have the
jurisdiction to interactions with the Natives, that only the government did, the Natives
(Cherokees) continued to be victims of mistreatment and unfairness from different States.
Around 100,000 Native Americans were removed from their native territories by force in
parts of North Carolina, Tennessee, Georgia, and Alabama. 43 Over 15,000 Cherokee Indians
travelled through southern Illinois on their Trail of Tears during the rough winter. On this
long trek from their birthplace near the Smokey Mountains to new government-designated
territories in eastern Oklahoma, hundreds of Natives passed away from hunger and cold.44

41
Cherokee Nation v. Georgia, 30 U.S. 5 Pet. 1 1 (1831).

42
Worcester v. Georgia, 31 U.S. 515 (1832).

43
“Teaching with Historic Places (U.S. National Park Service)” (National Parks Service)
<https://www.nps.gov/subjects/teachingwithhistoricplaces/index.htm> accessed November 30, 2022.

44
“Home | US Forest Service” (The Cherokee Trail of Tears2004)
<https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd762774.pdf> accessed November 30,
2022.
In the past, 100 million Indians had complete sovereignty over the whole area that is now the
United States. Over two percent of the area is currently ruled by 2 million Indians. This was a
heavy price to pay for the United States government to "use" their territory. 45Things could
definitely improve a lot for Native Americans. Although there were many positive statements
made in the past in support of Native land title in the common law courts, there can definitely
be much more done around this, to ensure the maximum level of fairness and equality for all.

Common Law Courts not Enough:

In general, it can be said with great confidence that the common law courts are not sufficient
for matters which involve old Native land title claims brought in by native peoples and
settlers back then. Due to the depth of the issues and the different worldviews of the parties
concerned, a series of discussions feel to be much more appropriate.46 It is extremely
important in this situation and in life in general to try get more insight from both sides of a
disagreement, however, going directly to the courts in order to come to a verdict might result
in worse outcomes, and discussions there would definitely be more strict complemented with
a much less comforting environment allowing proper and beneficial dialogue between
individuals. However, to reach a debate or discussion stage with two different parties can take
a lot of work to achieve, especially if there are prior disagreements between the two, which
can add tension and prevent them from agreeing to meeting up in the first place.

Political or moral issues are also outside the scope of the common law courts. They are set up
in a way that shields them from the whims of the current political circumstances. They are
outside the scope due to the fact that common law relies only on previous case law and
judgements which relate to the topic in question, as decisions made in higher courts are
binding on the lower courts. This is known as the doctrine of precedent, which is based on the
principle of stare decisis.47 A few of the measures put in place to ensure political

45
BN Campbell, “Do American Indians Govern Their Own Lands?” (US Embassy2004)
<https://ar.usembassy.gov/wp-content/uploads/sites/26/2016/05/P_You_Asked_DoAmericanIndiansGov
ernOwnLands.pdf> accessed November 30, 2022.

46
GR Schiveley, “Negotiation and Native Title: Why Common Law Courts Are Not Proper Fora for
Determining Native Land Title Issues” (2000) 33 Vanderbilt Journal of Transnational Law 427.

47
Practical Law Public Sector at Practical Law, “Doctrine of Precedent: Status of the Judge or Status of
the Court?” (Public Sector BlogApril 27, 2016) <http://publicsectorblog.practicallaw.com/doctrine-of-
precedent-status-of-the-judge-or-status-of-the-court/> accessed November 30, 2022.
independence from the court include the requirement for a law degree, life tenure for federal
justices, and also several seats on the supreme court. 48 This further highlights the need for
other methods to be used in order to aid with Native land title claims due to common law
courts’ lack of influence from other important aspects, such as the political and moral ones
highlighted above.

To conclude this essay, it is sufficiently evident that the common law courts in Australia,
New Zealand, Canada and America all took different approaches when it came to native land
title claims. All of these were extremely slow in acknowledging native land titles fully, in a
way which ensured fairness and equality to indigenous peoples as the owners of the land
however, some countries had a faster process of implementing change than others.
Furthermore, it is clear that some of these, especially America, still require further
adjustments to their rules in relation to native land title, due to the fact that they appear to
have achieved less results than the other three countries. The fact that they acknowledged
native land title in the different cases that came about was extremely impressive, seeing as
many back then and even to this day, had a typical colonizer mentality, and prejudiced
opinions of indigenous peoples which were built into their brains by these colonizers in order
to highlight the superiority of the whites against these indigenous peoples. On top of all of
this, as expressed earlier, common law courts are not enough for clearing up issues which
revolve around old native land title claims brought in by the people affected by the countries’
inequality in the past, due to the fact that common law courts are not fully capable of
incorporating political and moral issues into their decisions. In spite of that, the common law
courts have come a long way from the start, in their methods of dealing with this important
issue.

48
GR Schiveley, “Negotiation and Native Title: Why Common Law Courts Are Not Proper Fora for
Determining Native Land Title Issues” (2000) 33 Vanderbilt Journal of Transnational Law 427.