International and Comparative Law Quarterly


Historical Indigenous Peoples' Land Claims: A Comparative and International Approach to the Common Law Doctrine on Indigenous Title

Jérémie Gilbert*


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.


* Lecturer, Transitional Justice Institute, University of Ulster. An abridged version of this article has been presented by the author at the 2005 Commonwealth Law Conference in London, on which the idea of this article was developed. The author wishes to thank Christine Bell, Joshua Costellino and David Keane for comments on earlier drafts of this work.