Aboriginal customary law : a source of common law title to land / Ulla Secher.

Includes bibliographical references (pages 457-479) and index.

Part I. Australian land law and the meaning of radical title pre-Mabo
Chapter one. The origin and application of the doctrine of absolute crown ownership in Australia: the common law 1788-1992
Chapter two. The meaning of radical title pre-Mabo
Part II. The doctrine of tenure and the juridical consequences of the colonial law classification of an 'inhabitated' colony as 'settled' re-examined post-Mabo
Chapter three. The doctrine of tenure and the common law consequences of the classification of an 'inhabitated' colony as 'settled' post-Mabo: emergence of the doctrine of tenure ad veritatem and the doctrine of continuity pro-tempore
Part III. The meaning of radical title in post-Mabo Australian jusriprudence
Chapter four. Radical title and unalienated land post-Mabo
Chapter five. Radical title: lessons from the sea
Part IV. The practical implications of the crown's radical title
Chapter six. Crown acquisition of a plenary title: the common law record requirement and statutory regimes regulating the alienation of land
Chapter seven. The doctrine of common law aboriginal customary title in Australia and implications for South Africa
Chapter eight. Canada: application and implications of the doctrine of common law aboriginal customary title.
Cover; Half-title; Title; Copyright; Dedication; Foreword; Preface; Acknowledgements; Contents; Table of Cases; Table of Legislation; Introduction; Part I: Australian Land Law and the Meaning of Radical Title Pre-Mabo; Chapter One: The Origin and Application of the Doctrine of Absolute Crown Ownership in Australia: The Common Law 1788-1992; I The Feudal Basis of Land Law in England; A Germ of the Doctrine of Tenure; i Folkland; ii Bookland; iii Folkland: Private Property or Public Property?; iv Laenland; v Summary; B The Norman Conquest: Establishment of Feudal Tenure.
C 'Exceptions' to the Doctrine of Tenurei Allodial Land; ii Recognition of Customary Law Rights to Land: Tenure in Ancient Demesne; iii The Estate Pur Autre Vie; iv Adverse Possession; v Ecclesiastical Tenures; vi Summary; II The Reception of Land Law into the Australian Colonies; A The English Doctrine of Tenure in 1788; B The Doctrine of Reception; i Milirrpum v Nabalco Pty Ltd: Non-Feudal Rights in Land; III Conclusion; Chapter Two: The Meaning of Radical Title Pre-Mabo; I The Meaning of Radical Title: The Leading Privy Council Authorities (Re)Examined.
A St Catherine's Milling and Lumber Co v RB Amodu Tijani v Secretary, Southern Nigeria; C Re Southern Rhodesia; II International v Municipal Law: American Authority; A Johnson v M'Intosh; B Cherokee Nation v Georgia; C Worcester v Georgia; III New Zealand Authority; A R v Symonds; B Wi Parata v Bishop of Wellington: International Law Revisited; C Nireaha Tamaki v Baker; IV Conclusion; Part II: The Doctrine of Tenure and the Juridical Consequences of the Colonial Law Classification of an 'Inhabited' Colony as 'Settled' Re-examined Post-Mabo.
Chapter Three: The Doctrine of Tenure and the Common Law Consequences of the Classification of an 'Inhabited' Colony as 'Settled' Post-Mabo: Emergence of the Doctrine of Tenure ad Veritatem and the Doctrine of Continuity Pro-TemporeI Radical Title as the Postulate of the Doctrine of Tenure ad Veritatem; A Mabo: The Decision; B The Feudal Basis of Land Law Revisited; C Summary; II The Reception of Land Law into the Australian Colonies Revisited; A Constitutional Status of Australia: An Inhabited Settled Colony; B The Continuity and Recognition Doctrines Revisited.
C Royal Prerogative Powers in the Coloniesi Conquered/​Ceded Colonies; ii Inhabited Settled Colonies; D Relevance of Kent McNeil's Original Thesis; III Post-Mabo Developments; A High Court Decisions; B Native Title Legislation; IV Conclusion; Part III: The Meaning of Radical Title in Post-Mabo Australian Jurisprudence; Chapter Four: Radical Title and Unalienated Land Post-Mabo; I Automatic Expansion of Radical Title in Respect of Original Unalienated Land: Brennan J's Reliance on the 'No Other Proprietor' Principle (Radical Title as a Concomitant of Sovereignty).
A Beneficial Ownership of Original Unalienated Land? The 'No Other Proprietor' Principle: New Legal Fiction Replacing the Feudal Fiction of Original Crown Ownership
Attorney-General (NSW) v Brown Revisited.
Machine generated contents note: pt. I Australian Land Law and the Meaning of Radical Title Pre-Mabo
ch. One The Origin and Application of the Doctrine of Absolute Crown Ownership in Australia: The Common Law 1788
1992
I.The Feudal Basis of Land Law in England
A.Germ of the Doctrine of Tenure
i.Folkland
ii.Bookland
iii.Folkland: Private Property or Public Property?
iv.Laenland
v.Summary
B.The Norman Conquest: Establishment of Feudal Tenure
C.`Exceptions' to the Doctrine of Tenure
i.Allodial Land
ii.Recognition of Customary Law Rights to Land: Tenure in Ancient Demesne
iii.The Estate Pur Autre Vie
iv.Adverse Possession
v.Ecclesiastical Tenures
vi.Summary
II.The Reception of Land Law into the Australian Colonies
A.The English Doctrine of Tenure in 1788
B.The Doctrine of Reception
i.Milirrpum v Nabalco Pty Ltd: Non-Feudal Rights in Land
III.Conclusion
ch. Two The Meaning of Radical Title Pre-Mabo
Contents note continued: I.The Meaning of Radical Title: The Leading Privy Council Authorities (Re)Examined
A.St Catherine's Milling and Lumber Co v R
B.Amodu Tijani v Secretary, Southern Nigeria
C.Re Southern Rhodesia
II.International v Municipal Law: American Authority
A.Johnson v M'Intosh
B.Cherokee Nation v Georgia
C.Worcester v Georgia
III.New Zealand Authority
A.R v Symonds
B.Wi Parata v Bishop of Wellington: International Law Revisited
C.Nireaha Tamaki v Baker
IV.Conclusion
pt. II The Doctrine of Tenure and the Juridical Consequences of the Colonial Law Classification of an `Inhabited' Colony as `Settled' Re-examined Post-Mabo
ch. Three The Doctrine of Tenure and the Common Law Consequences of the Classification of an `Inhabited' Colony as `Settled' Post-Mabo: Emergence of the Doctrine of Tenure ad Veritatem and the Doctrine of Continuity Pro-Tempore
I.Radical Title as the Postulate of the Doctrine of Tenure ad Veritatem
Contents note continued: A.Mabo: The Decision
B.The Feudal Basis of Land Law Revisited
C.Summary
II.The Reception of Land Law into the Australian Colonies Revisited
A.Constitutional Status of Australia: An Inhabited Settled Colony
B.The Continuity and Recognition Doctrines Revisited
C.Royal Prerogative Powers in the Colonies
i.Conquered/​Ceded Colonies
ii.Inhabited Settled Colonies
D.Relevance of Kent McNeil's Original Thesis
III.Post-Mabo Developments
A.High Court Decisions
B.Native Title Legislation
pt. III The Meaning of Radical Title in Post-Mabo Australian Jurisprudence
ch. Four Radical Title and Unalienated Land Post-Mabo
I.Automatic Expansion of Radical Title in Respect of Original Unalienated Land: Brennan J's Reliance on the `No Other Proprietor' Principle (Radical Title as a Concomitant of Sovereignty)
Contents note continued: A.Beneficial Ownership of Original Unalienated Land? The `No Other Proprietor' Principle: New Legal Fiction Replacing the Feudal Fiction of Original Crown Ownership
Attorney-General (NSW) v Brown Revisited
i.Obiter Comment: Incorrect in Law
ii.Crown Not in Fact Proprietor of all Land under Feudal Theory
iii.`No Other Proprietor' Principle Contradicts Legal Origins and Purpose of Radical Title
II.Automatic Expansion of Radical Title in Respect of Currently Unalienated Land: Brennan J's `Reversion Expectant' Argument (Radical Title as Both the Postulate of the Doctrine of Tenure and a Concomitant of Sovereignty)
A.Beneficial Ownership of Currently Unalienated Land? Common Law Implications of the `Reversion Expectant' Argument: The Two Limbs of Radical Title and General Principles
i.Radical Title as the Postulate of the Doctrine of Tenure: A Bare Legal Title
Contents note continued: ii.Radical Title as a Concomitant of Sovereignty: No Legal Requirement for a Reversion Expectant to Support a Lease by the Crown
iii.Summary
B.The High Court, Radical Title and the Reversion Expectant
i.Wik
ii.Leases in Perpetuity
iii.Implications for the Legal Nature of the Crown's Title on the Statutory Grant of a Common Law Lease: Underlying Rationales in Wik
III.Extinguishment of Native Title by Crown Grant
A.Brennan CJ: Author of Minority Judgment in Wik
B.Wik Majority and Ward
C.Extinguishment by Freehold Grant: Fejo v Northern Territory
D.The Common Law Concept of Partial Extinguishment
E.Operational Inconsistency
IV.Native Title Legislation: Implications for Property Rights to Currently Unalienated Land
V.Conclusion
ch. Five Radical Title: Lessons from the Sea
I.The Crown's Title to the Territorial Seabed and Beyond: The Position Before Mabo
Contents note continued: II.The Crown's Title to the Territorial Seabed and Beyond Post-Mabo: WMC and YarmirrFC
A.WMC: Brennan CJ's Judgment
Radical Title versus Statutory Sovereign Rights
B.YarmirrFC: Full Federal Court
i.The Majority: Statutory Extension of Radical Title and Selective Operation of the Common Law
ii.Merkel J: Common Law Sovereign Rights Equivalent to Radical Title
C.WMC: The Other High Court Judges
Common Law Extension of Radical Title to the Territorial Sea
III.Summary
IV.Yarmirr: The High Court
A.Principal Majority Judgment
i.Territorial Reach of the Common Law
ii.Radical Title versus Common Law Sovereign Rights
V.Post-Yarmirr Developments
A.The Intertidal Zone
i.Gumana v Northern Territory
ii.Gumana FC: Two Further Objections to Non-Recognition of Exclusive Native Title Rights to the Sea
B.Beyond the Territorial Sea Revisited
the Exclusive Economic Zone and the Continental Shelf: Akiba
VI.Conclusion
Contents note continued: pt. IV The Practical Implications of the Crown's Radical Title
ch. Six Crown Acquisition of a Plenary Title: The Common Law Record Requirement and Statutory Regimes Regulating the Alienation of Land
I.Occupancy as a Basis of Original Crown Ownership
A.The Pre-Mabo Position
B.The Post-Mabo Position
i.Were the Requirements of Occupation Satisfied upon Settlement of Australia?
II.The Record Requirement
A.Inquest of Office
B.Information of Intrusion
III.Crown Land Statutes: Statutory Definition of `Crown Land'
A.Post-Mabo Relationship between `Crown Land' and Radical Title
i.Residuary Rights to Crown Land at the Expiration of a Pastoral Lease: Wik Revisited
ii.Resumption and Vesting of Crown Land which has Previously been Alienated: Ward
iii.Policy of Crown Lands Legislation
iv.Pre-Mabo Distinction between `Crown Land' and `Property of the Crown'
v.Statutory Trespass
Contents note continued: IV.Legislative Provisions Dealing with the Power to Legislate Regarding Crown Land
ch. Seven The Doctrine of Common Law Aboriginal Customary Title in Australia and Implications for South Africa
I.Aboriginal Customary Law: A Source of Non-Derivative Common Law Title to Land
II.First Limb of the Doctrine of Common Law Aboriginal Customary Title: Title Arising After Acquisition of Sovereignty
A.Incorporeal Rights Proper v Analogous Customary Rights
i.Proof of Customary Rights: Local Common Law
ii.Public Rights Distinguished
B.Application of the First Limb
C.Content, Proof and Protection under the First Limb
III.Second Limb of the Doctrine of Common Law Aboriginal Customary Title: Title Arising Before Acquisition of Sovereignty
A.Aboriginal Customary Title
i.Tenure in Ancient Demesne
ii.Folkand
B.Content of Aboriginal Customary Title
i.External Dimension: Folkland Branch
Contents note continued: ii.External Dimension: Ancient Demesne Branch
iii.Internal Dimension
C.Proof of Aboriginal Customary Title
i.Test for Proof
ii.Specific Presumptions and Rules Relating to Proof
D.Protection of Aboriginal Customary Title
IV.Doctrinal Underpinnings for Aboriginal Customary Title
V.Aboriginal Customary Law as a Source of Non-Derivative Common Law Title to Land in Ceded and Conquered Colonies: South Africa Post-Richtersveld
A.South Africa's Bipartite Colonial History
B.The South African Experience: Richtersveld
i.Supreme Court of Appeal
ii.Constitutional Court
C.The Doctrine of Continuity Pro-Tempore in Bipartite Colonial Contexts
D.The First Limb in South Africa
ch. Eight Canada: Application and Implications of the Doctrine of Common Law Aboriginal Customary Title
I.The Reception of Law in Canada: the Constitutional Status of the Canadian Provinces and Territories Reconsidered
Contents note continued: A.Reception of Land Law in the Canadian Provinces and Territories
B.Summary
II.The Doctrine of Tenure, Radical Title and Aboriginal Land Rights in Canada
A.Pre-Calder Aboriginal Title Jurisprudence
B.Calder and pre-Delgamuukw Aboriginal Title Jurisprudence
C.Summary: the Canadian Jurisprudence pre-Delgamuukw
D.Delgamuukw and Beyond
i.Delgamuukw
ii.Marshall/​Bernard
iii.Tsilhqot'in Nation
iv.William v British Colombia
III.Bipartite Colonial Contexts
Quebec and Aboriginal Title
IV.Conclusion.
Part I: Australian Land Law and the Meaning of Radical Title Pre-Mabo
Chapter One: The Origin and Application of the Doctrine of Absolute Crown Ownership in Australia: The Common Law 1788-1992
Chapter Two: The Meaning of Radical Title Pre-Mabo
Part II: The Doctrine of Tenure and the Juridical Consequences of the Colonial Law Classification of an 'Inhabited' Colony as 'Settled' Re-examined Post-Mabo
Chapter Three: The Doctrine of Tenure and the Common Law Consequences of the Classification of an 'Inhabited' Colony as 'Settled' Post-Mabo: Emergence of the Doctrine of Tenure ad Veritatem and the Doctrine of Continuity Pro-Tempore
Part III: The Meaning of Radical Title in Post-Mabo Australian Jurisprudence
Chapter Four: Radical Title and Unalienated Land Post-Mabo
Chapter Five: Radical Title: Lessons from the Sea
Part IV: The Practical Implications of the Crown's Radical Title
Chapter Six: Crown Acquisition of a Plenary Title: The Common Law Record Requirement and Statutory Regimes Regulating the Alienation of Land
Chapter Seven: The Doctrine of Common Law Aboriginal Customary Title in Australia and Implications for South Africa
Chapter Eight: Canada: Application and Implications of the Doctrine of Common Law Aboriginal Customary Title
Conclusions.

This book develops an alternative approach to conventional Aboriginal title doctrine. It explains that aboriginal customary law can be a source of common law title to land in former British colonies, whether they were acquired by settlement or by conquest or cession from another colonising power. The doctrine of Common Law Aboriginal Customary Title provides a coherent approach to the source, content, proof and protection of Aboriginal land rights which overcomes problems arising from the law as currently understood and leads to more just results. The doctrine's applicability in Australia, Canada and South Africa is specifically demonstrated. While the jurisprudential underpinnings for the doctrine are consistent with fundamental common law principles, the author explains that the Australian High Court's decision in Mabo provides a broader basis for the doctrine: a broader basis which is consistent with a re-evaluation of case-law from former British colonies in Africa, as well as from the United States, New Zealand and Canada. In this context, the book proffers a reconceptualisation of the Crown's title to land in former colonies and a reassessment of conventional doctrines, including the doctrine of tenure and the doctrine of continuity.