Customary land is land which is owned by indigenous communities and administered in accordance with their customs, as opposed to statutory tenure usually introduced during the colonial periods. Common ownership is one form of customary land ownership.
Indigenous peoples, also known as first peoples, aboriginal peoples or native peoples, are ethnic groups who are the original settlers of a given region, in contrast to groups that have settled, occupied or colonized the area more recently. Groups are usually described as indigenous when they maintain traditions or other aspects of an early culture that is associated with a given region. Not all indigenous peoples share this characteristic, as many have adopted substantial elements of a colonizing culture, such as dress, religion or language. Indigenous peoples may be settled in a given region (sedentary) or exhibit a nomadic lifestyle across a large territory, but they are generally historically associated with a specific territory on which they depend. Indigenous societies are found in every inhabited climate zone and continent of the world.
“Customs” means the Government Service which is responsible for the administration of Customs law and the collection of duties and taxes and which also has the responsibility for the application of other laws and regulations relating to the importation, exportation, movement or storage of goods.
Common ownership refers to holding the assets of an organization, enterprise or community indivisibly rather than in the names of the individual members or groups of members as common property.
Since the late 20th century, statutory recognition and protection of indigenous and community land rights continues to be a major challenge. The gap between formally recognized and customarily held and managed land is a significant source of underdevelopment, conflict, and environmental degradation.
In the Malawi Land Act of 1965, "Customary Land" is defined as "all land which is held, occupied or used under customary law, but does not include any public land".
Malawi, officially the Republic of Malawi, is a landlocked country in southeast Africa that was formerly known as Nyasaland. It is bordered by Zambia to the northwest, Tanzania to the northeast, and Mozambique on the east, south and west. Malawi is over 118,000 km2 (45,560 sq mi) with an estimated population of 18,091,575. Lake Malawi takes up about a third of Malawi's area. Its capital is Lilongwe, which is also Malawi's largest city; the second largest is Blantyre, the third is Mzuzu and the fourth largest is its old capital Zomba. The name Malawi comes from the Maravi, an old name of the Nyanja people that inhabit the area. The country is also nicknamed "The Warm Heart of Africa" because of the friendliness of the people.
In most countries of the Pacific islands, customary land remains the dominant land tenure form. Distinct customary systems of tenure have evolved on different islands and areas within the Pacific region. In any country there may be many different types of customary tenure.
In common law systems, land tenure is the legal regime in which land is owned by an individual, who is said to "hold" the land. It determines who can use land, for how long, and under what conditions. Tenure may be based both on official laws and policies, and on informal customs. The French verb "tenir" means "to hold" and "tenant" is the present participle of "tenir". The sovereign monarch, known as The Crown, held land in its own right. All private owners are either its tenants or sub-tenants. Tenure signifies the relationship between tenant and lord, not the relationship between tenant and land. Over history, many different forms of land ownership, i.e., ways of owning land, have been established.
The amount of customary land ownership out of the total land area of Pacific island nations is the following: 97% in Papua New Guinea, 90% in Vanuatu, 88% in Fiji, 87% in the Solomon Islands, and 81% in Samoa.
Papua New Guinea, officially the Independent State of Papua New Guinea, is an Oceanian country that occupies the eastern half of the island of New Guinea and its offshore islands in Melanesia, a region of the southwestern Pacific Ocean north of Australia. Its capital, located along its southeastern coast, is Port Moresby. The western half of New Guinea forms the Indonesian provinces of Papua and West Papua.
Vanuatu, officially the Republic of Vanuatu, is a Pacific island country located in the South Pacific Ocean. The archipelago, which is of volcanic origin, is 1,750 kilometres (1,090 mi) east of northern Australia, 540 kilometres (340 mi) northeast of New Caledonia, east of New Guinea, southeast of the Solomon Islands, and west of Fiji.
Fiji, officially the Republic of Fiji, is an island country in Melanesia, part of Oceania in the South Pacific Ocean about 1,100 nautical miles northeast of New Zealand's North Island. Its closest neighbours are Vanuatu to the west, New Caledonia to the southwest, New Zealand's Kermadec Islands to the southeast, Tonga to the east, the Samoas and France's Wallis and Futuna to the northeast, and Tuvalu to the north. Fiji consists of an archipelago of more than 330 islands—of which 110 are permanently inhabited—and more than 500 islets, amounting to a total land area of about 18,300 square kilometres (7,100 sq mi). The most outlying island is Ono-i-Lau. The two major islands, Viti Levu and Vanua Levu, account for 87% of the total population of 898,760. The capital, Suva, on Viti Levu, serves as the country's principal cruise-ship port. About three-quarters of Fijians live on Viti Levu's coasts, either in Suva or in smaller urban centres such as Nadi—where tourism is the major local industry—or Lautoka, where the sugar-cane industry is paramount. Due to its terrain, the interior of Viti Levu is sparsely inhabited.
Mabo v Queensland was a landmark High Court of Australia decision in 1992 recognising native title in Australia for the first time.
Land reform involves the changing of laws, regulations or customs regarding land ownership. Land reform may consist of a government-initiated or government-backed property redistribution, generally of agricultural land. Land reform can, therefore, refer to transfer of ownership from the more powerful to the less powerful, such as from a relatively small number of wealthy owners with extensive land holdings to individual ownership by those who work the land. Such transfers of ownership may be with or without compensation; compensation may vary from token amounts to the full value of the land.
The Torres Strait Islands are a group of at least 274 small islands which lie in Torres Strait, the waterway separating far northern continental Australia's Cape York Peninsula and the island of New Guinea.
In Australia, the common law doctrine of Aboriginal title is referred to as native title, which is "the recognition by Australian law that Aboriginal people have rights and interests to their land that come from their traditional laws and customs". The concept recognises that in certain cases there was and is a continued beneficial legal interest in land held by local Aboriginal Australians which survived the acquisition of radical title to the land by the Crown at the time of sovereignty. Native title can co-exist with non-Aboriginal proprietary rights and in some cases different Aboriginal groups can exercise their native title over the same land.
Land law is the form of law that deals with the rights to use, alienate, or exclude others from land. In many jurisdictions, these kinds of property are referred to as real estate or real property, as distinct from personal property. Land use agreements, including renting, are an important intersection of property and contract law. Encumbrance on the land rights of one, such as an easement, may constitute the land rights of another. Mineral rights and water rights are closely linked, and often interrelated concepts.
Indigenous land rights are the rights of indigenous peoples to land, either individually or collectively. Land and resource-related rights are of fundamental importance to indigenous peoples for a range of reasons, including: the religious significance of the land, self-determination, identity, and economic factors. Land is a major economic asset. The majority of indigenous peoples living in forest areas depend on the natural resources of their lands to fulfill their subsistence needs. Hunting, fishing, gathering of forest products, and small garden plots still form the basis of their household economy. The security and permanence of their control and use of the natural resource base is actually more important to most indigenous groups than direct ownership of the land itself. The demand for ownership, in fact, derives from the need to ensure their access to these resources, so it is of particular importance to examine how the different national-level legal regimes handle this aspect of indigenous ownership. Land is also an important instrument of inheritance and it is a symbol of social status. The land is essential for people’s spiritual development. The land is sacred and everything they get from the land is a gift from their gods. Losing their land means a loss of contact with the earth and a loss of identity. Land is not only an asset with economic and financial value, but also a very important part of people's lives, worldviews and belief systems.
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for 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.
Te Ture Whenua Māori Act 1993 is a statute of the Parliament of New Zealand to "reform the laws relating to Māori land in accordance with the principles set out in the Preamble". These principles "reaffirm" the Treaty of Waitangi "relationship between the Māori people and the Crown" and "recognise that land is taonga tuku iho of special significance to Māori people". To that end, the principles "promote the retention of ... land in the hands of its owners, their whanau, and their hapu, and to protect wahi tapu". Further, they "facilitate the occupation, development, and utilisation of that land for the benefit of its owners, their whanau, and their hapu".
The Scheduled Tribes and Other Traditional Forest Dwellers Act, 2006, is a key piece of forest legislation passed in India on 18 December 2006. It has also been called the Forest Rights Act, the Tribal Rights Act, the Tribal Bill, and the Tribal Land Act. The law concerns the rights of forest-dwelling communities to land and other resources, denied to them over decades as a result of the continuance of colonial forest laws in India.
The following outline is provided as an overview of and topical guide to Papua New Guinea:
Land ownership in Canada is held by governments, Indigenous groups, corporations, and individuals. Canada is the second-largest country in the world by area; at 9,093,507 km² or 3,511,085 mi² of land it occupies more than 6% of the Earth's surface. Since Canada uses primarily English-derived common law, the holders of the land actually have land tenure rather than absolute ownership.
South African customary law refers to a usually uncodified legal system developed and practised by the indigenous communities of South Africa. Customary law has been defined as
an established system of immemorial rules [...] evolved from the way of life and natural wants of the people, the general context of which was a matter of common knowledge, coupled with precedents applying to special cases, which were retained in the memories of the chief and his councilors, their sons and their sons' sons until forgotten, or until they became part of the immemorial rules.
South African property law regulates the "rights of people in or over certain objects or things." It is concerned, in other words, with a person's ability to undertake certain actions with certain kinds of objects in accordance with South African law. Among the formal functions of South African property law is the harmonisation of individual interests in property, the guarantee and protection of individual rights with respect to property, and the control of proprietary relationships between persons, as well as their rights and obligations. The protective clause for property rights in the Constitution of South Africa stipulates those proprietary relationships which qualify for constitutional protection. The most important social function of property law in South Africa is to manage the competing interests of those who acquire property rights and interests. In recent times, restrictions on the use of and trade in private property have been on the rise.
Alexkor v Richtersveld Community, decided by the Constitutional Court in 2001, is an important case in South African law, with a particular bearing on the law of property and the use of customary law.
Certificates of Claim were a form of legal instrument by which the colonial administration of the British Central Africa Protectorate granted title to individuals, companies and others who claimed to have acquired land within the protectorate by grant or purchase. The proclamation of the British Central Africa Protectorate was endorsed by the Foreign Office in May 1891, and Harry Johnston as Commissioner and Consul-General examined and adjudicated on all claims that land had been acquired before or immediately after that date. Between late 1892 and Match 1894, Johnston issued 59 Certificates of Claim for land, each of which was equivalent to a freehold title to the land claimed. Very few claims were disallowed or reduced in extent, and around 3.7 million acres, or 15% of the land area of the protectorate, was alienated, mainly to European settlers. No Certificates of Claim were issued after 1894, but this form of land title was never abolished and some land in Malawi is still held under those certificates.
Native Trust Land in colonial Nyasaland was a category of land held in trust by the Secretary of State for the Colonies and administered by the colonial Governor for the benefit of African communities. In pre-colonial times, land belonged to the African communities that occupied it, and they were free to use it in accordance with local customary law. In the late 19th century, large areas of fertile land were acquired by European settlers, and the remainder became Crown land, which the colonial government could alienate without the consent of the resident communities. To give a measure of protection to those communities, in 1916 land in Native Reserves, which then amounted to about a quarter of the land in the protectorate, was designated as Native Trust Land, to be held in trust for the benefit of African communities. Later, in 1936, all Crown Land except game or forest reserves or that used for public purposes became Native Trust Land, and Native Authorities were authorised to allocate Trust Land to their communities in accordance with customary law. After 1936, Native Trust Land constituted over 80% of the land in Nyasaland and most African farmers farmed Native Trust Land from then until Nyasaland gained independence as Malawi in 1964 and after.
Ancestral domain or ancestral lands refers to the lands, territories and resources of indigenous peoples, particularly in the Asia-Pacific region. The term differs from indigenous land rights, Aboriginal title or Native Title by directly indicating relationship to land based on ancestry, while domain indicates relationships beyond material lands and territories, including spiritual and cultural aspects that may not be acknowledged in land titles and legal doctrine about trading ownership.
The Law of Tuvalu comprises the legislation voted into law by the Parliament of Tuvalu and statutory instruments that become law; certain Acts passed by the Parliament of the United Kingdom ; the common law; and customary law. The land tenure system is largely based on kaitasi.
The Flexible Land Tenure System (FLTS) is an innovative concept to provide affordable security of tenure to inhabitants in informal settlements in Namibia.
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