Aboriginal Customary Law: A Source Of Common Law Title To Land
Ulla Secher; Hart Publishing, 2014
As
noted in the Preface, this book seeks ‘to offer an alternative to
conventional Aboriginal title doctrine,’ namely the doctrine of common
law Aboriginal customary title.
The book starts by explaining the system of feudalism that shaped the
common law and the doctrine of tenure, and the effect of their
reception into the Australian colonies up until the seminal Mabo
decision. The book then re-evaluates pre-Mabo case law from former
British colonies in Africa, as well as the United States, Canada and New
Zealand.
The
book is centred around the High Court’s decision in Mabo, and in
particular the finding that at sovereignty, the Crown only acquired a
radical title to all land, rather than absolute beneficial ownership –
thus overruling an assumption that had guided Australian real property
law since colonisation. This finding enabled the High Court to make it
clear that the underlying basis of Australian land law is an Australian
rather than English version of the doctrine of tenure, and that the
Australian version could accommodate native title, albeit a title which
could be readily extinguished by Crown appropriation and grant. The
author goes further however in arguing that radical title provides the
basis of a new system of land tenure which, in addition to native title,
can accommodate Aboriginal customary law as a source of common law
title to land.
The author maintains however that the jurisprudential underpinnings
for the doctrine of common law Aboriginal customary title are still
consistent with fundamental common law principles. The Mabo decision
provides a broader basis for the doctrine — one which is consistent with
the re-evaluated case law.
The book is not limited however to an analysis of Mabo in relation to
the doctrine of common law Aboriginal customary title. As well as its
consideration of pre-Mabo jurisprudence in other jurisdictions, the book
considers the application of the doctrine and its implications for
Australia, Canada and South Africa. It challenges the reader to
reconceptualise the Crown’s title to land in former colonies and to
reassess conventional doctrines, such as the doctrine of tenure and the
doctrine of continuity.
This is a book for native title practitioners and anyone familiar
with the Mabo decision. It’s not a light read; the reader will need to
give the book their full attention in order to appreciate the importance
of what the author is saying.
However in saying that, the author has done an impressive job at
articulating her thesis in a straightforward yet sophisticated style.
Her comprehensive re-evaluation of relevant case law and her analysis of
Mabo shows a depth of knowledge which flows through the entire book.
Her meticulous research and attention to detail is clearly evident.
Reading this book is well worth the effort; the reader will come away
with a new perspective on Mabo, and a fresh outlook on the future of
Indigenous land rights. I would agree with Kent McNeil’s description in
the foreword that it is ‘a formidable contribution’.