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Mabo v Queensland is a landmark decision of the High Court of Australia that recognised the existence of Native Title in Australia. It was brought by Eddie Mabo against the State of Queensland and decided on 3 June 1992. The case is notable for being the first in Australia to recognise pre-colonial land interests of Indigenous Australians within the common law of Australia.
Terra nullius is a Latin expression meaning "nobody's land". It was a principle sometimes used in international law to justify claims that territory may be acquired by a state's occupation of it. There are currently three territories sometimes claimed to be terra nullius: Bir Tawil, four pockets of land near the Danube due to the Croatia–Serbia border dispute, and parts of Antarctica, principally Marie Byrd Land.
Finders, keepers, sometimes extended as the children's rhyme finders, keepers; losers, weepers, is an English adage with the premise that when something is unowned or abandoned, whoever finds it first can claim it for themself permanently. The phrase relates to an ancient Roman law of similar meaning and has been expressed in various ways over the centuries. The 1982 English Court of Appeal case Parker v British Airways Board expanded the phrase, with the judgement of Donaldson L.J. declaring "Finders keepers, unless the true owner claims the article". Difficulties arise when exploring how best to define when exactly something is unowned or abandoned, which can lead to legal or ethical disputes, especially as jurisdictions often differ in their approach.
A land claim is defined as "the pursuit of recognized territorial ownership by a group or individual". The phrase is usually only used with respect to disputed or unresolved land claims. Some types of land claims include aboriginal land claims, Antarctic land claims, and post-colonial land claims.
In common law systems, land tenure, from the French verb "tenir" means "to hold", is the legal regime in which land "owned" by an individual is possessed by someone else who is said to "hold" the land, based on an agreement between both individuals. 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 local customs. In other words, land tenure implies a system according to which land is held by an individual or the actual tiller of the land but this person does not have legal ownership. It determines the holder's rights and responsibilities in connection with their holding. The sovereign monarch, known in England as the Crown, held land in its own right. All land holders are either its tenants or sub-tenants. Tenure signifies a legal relationship between tenant and lord, arranging the duties and rights of tenant and lord in relationship to the land. Over history, many different forms of land tenure, i.e., ways of holding land, have been established.
Accession has different definitions depending upon its application.
Plantations in 16th- and 17th-century Ireland involved the confiscation of Irish-owned land by the English Crown and the colonisation of this land with settlers from Great Britain. The Crown saw the plantations as a means of controlling, anglicising and 'civilising' Gaelic Ireland. The main plantations took place from the 1550s to the 1620s, the biggest of which was the plantation of Ulster. The plantations led to the founding of many towns, massive demographic, cultural and economic changes, changes in land ownership and the landscape, and also to centuries of ethnic and sectarian conflict. They took place before and during the earliest English colonisation of the Americas, and a group known as the West Country Men were involved in both Irish and American colonization.
Unowned property includes tangible, physical things that are capable of being reduced to being property owned by a person but are not owned by anyone. Bona vacantia is a legal concept associated with the unowned property, which exists in various jurisdictions, with a consequently varying application, but with origins mostly in English law.
Mubāḥ is an Arabic word roughly meaning "permitted", which has technical uses in Islamic law.
Accessio is a concept from Roman property law for acquiring ownership of property which is merged, or acceded to, another piece of property. Generally, the owner of the principal, whatever it may be, also became the owner of the accessory. Its usage continues in modern times in legal systems around the world incorporating Roman property law, primarily civilian legal systems.
Occupatio (occupation) was an original method of acquiring ownership of un-owned property by occupying with intent to own.
Specificatio is a legal concept adopted from Roman law. It is an original mode of acquisition, since it involves deriving rights over objects that are not subject to pre-existing rights of ownership.
The inter regalia are the rights falling to the Crown in Scots Property law. The term derives from Latin inter (among) and regalia.
In law, abandonment is the relinquishment, giving up, or renunciation of an interest, claim, privilege, possession, civil proceedings, appeal, or right, especially with the intent of never again resuming or reasserting it. Such intentional action may take the form of a discontinuance or a waiver. This broad meaning has a number of applications in different branches of law. In common law jurisdictions, both common law abandonment and statutory abandonment of property may be recognized.
Scots property law governs the rules relating to property found in the legal jurisdiction of Scotland. As a hybrid legal system with both common law and civil law heritage, Scots property law is similar, but not identical, to property law in South Africa and the American state of Louisiana.
Res extra commercium is a doctrine originating in Roman law, holding that certain things may not be the object of private rights, and are therefore insusceptible to being traded. The doctrine encompasses entities such as humans, public areas, organs, citizenship, and prostitution, and is an exception to the general principle of freedom of contract.
The "first possession" theory of property holds that ownership of something is justified simply by someone seizing it before someone else does. This contrasts with the labor theory of property where something may become property only by applying productive labor to it, i.e. by making something out of the materials of nature.
Occupatio or occupation is a method of original acquisition of property in Scots law. It derives from the Roman law concept of the same name. Occupatio allows an occupier of an object (res) with the intention to own the property to become the owner. As most property in Scotland is owned, and with the caduciary right that all ownerless property falls to the Crown, its application is uncommon. Nevertheless, it remains a valid method of acquiring ownership in Scots law.
In Canada, aboriginal title is considered a sui generis interest in land. Aboriginal title has been described this way in order to distinguish it from other proprietary interests, but also due to the fact its characteristics cannot be explained by reference either to only the common law rules of real property, or to only the rules of property found in Indigenous legal systems. The Supreme Court of Canada has characterised the idea that aboriginal title is sui generis as the unifying principle underlying the various dimensions of that title. Aboriginal title is properly construed as neither a real right nor a personal right, despite the fact that it appears to share characteristics of both real and personal rights. Aboriginal title refers to the concept of a sui generis right in land that originates from the exclusive occupation and use of a specific territory by an aboriginal group over which the group has a native historic attachment.
The mawat land doctrine is a doctrine in laws of some middle eastern countries similar to the terra nullius concept in the law of occupation of a land without a sovereign.
References
- ↑ Adolf Berger, entry on res nullius, Encyclopedic Dictionary of Roman Law (American Philological Society, 1953, 1991), p. 679.
- ↑ Johnston. The International Law of Fisheries. 1987. p 309.
- ↑ "Argument from Roman law in current international law: Occupation and acquisitive prescription" (PDF).
- ↑ W. W Buckland, A Manual of Roman Private Law (Cambridge University Press, 1939), p. 138.
- ↑ Kelly, Joseph (1910). . In Herbermann, Charles (ed.). Catholic Encyclopedia . Vol. 8. New York: Robert Appleton Company.
- ↑ One or more of the preceding sentences incorporates text from a publication now in the public domain: Chisholm, Hugh, ed. (1911). "Game laws". Encyclopædia Britannica . Vol. 11 (11th ed.). Cambridge University Press. p. 440.
- ↑ Benton, Lauren; Straumann, Benjamin. Acquiring Empire by Law: From Roman doctrine to early modern European practice. p. 2.
- ↑ Nicholas, Barry (1962). An Introduction to Roman Law. Oxford, UK: Clarendon Press. p. 132. ISBN 0-19-876063-9. OCLC 877760.
- ↑ Canny, Nicholas (3 May 2001). Making Ireland British, 1580-1650. OUP Oxford. ISBN 978-0-19-154201-5 – via Google Books.
- ↑ Anderson, Martin (26 September 2012). Interlocutors of Paradise. Skylight Press. ISBN 9781908011565 – via Google Books.
- ↑ McCormack, Anthony M. (26 May 2004). "The social and economic consequences of the Desmond rebellion of 1579–83". Irish Historical Studies. 34 (133): 1–15. doi:10.1017/S0021121400004053. S2CID 163236073 – via Cambridge University Press.
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