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’.