Lis and Land Tenure: an Examination of Fuzzy Theory as a Means of Assessing Aboriginal Land Rights

Abstract

In the wake of the Mabo decision from Australia and the Delgamuukw decision from Canada, it is clear that Aboriginal Title to land can only be lost through cession by treaty, abandonment, conquest, or legitimate legislation of the Crown. What is less clear is the effect that legitimate Crown Grants and Certificates of Title (accompanied by parcel boundary surveys) have on claims to aboriginal servitudes. Such servitudes represent non-territorial aboriginal title, and are akin to easements in statute law. Some of the tension over title to, and use of land can be defused by using fuzzy theory to define zones of overlapping rights in land. Such a methodology is similar to the continuing use of general boundaries in which a feature (sometimes ambulatory) defines the spatial extent of a parcel, allows sites of spiritual significance (sometimes used only seasonally) to be defined, and has application to New Zealand and Australia. Waahi Tapu could be thus defined (if not demarcated), thus according with the prin...