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Hepburn, Samantha --- "Feudal Tenure and Native Title: Revising an Enduring Fiction" [2005] SydLawRw 3; (2005) 27(1) Sydney Law Review 49


Feudal Tenure and Native Title: Revising an Enduring Fiction

SAMANTHA HEPBURN[*]

Abstract

This article argues that the feudal doctrine of tenure continues to endure as the foundation for Australian land law despite its obvious social and historical irrelevance. The doctrine of tenure is a derivation of feudal history. The article examines some of its historical foundations with the aim of highlighting the disparity between the fiction of this inherited form and the reality of a colonial Australian landscape. Particular attention is given to the fact that Australian feudal tenure was always a passive framework. It was disconnected with the landscape and therefore incapable of responding to the needs of colonial expansion. This resulted in a clear disparity between feudal form and the reality of a land system populated by statutory grants. The article argues that feudal tenure was never truly devised as a responsive land system but rather, adopted as a sovereignty device. In this sense, legal history was utilised with the aim of promoting imperial objectives within colonial Australia. Tenure was equated with absolute Crown ownership over all Australian territory despite the fact that this was inconsistent with the orthodox tenets of feudal tenure.

The article argues that the consequence of adopting feudal tenure and absolute Crown ownership has been the estrangement of indigenous rights, title and culture. The creation and legitimisation of a land framework with a fundamentally Eurocentric perspective completely destroyed indigenous interests during the settlement and colonial era. It created an imperial ideology where colonists silently accepted the denial of indigenous identity. The decision of the Mabo High Court to reassess this historical perspective and accept the validity of proven native title claims clearly disturbed tenurial assumptions. However, the High Courts’ reification of the feudal form created a fundamental paradox: indigenous title was accepted as a proprietary right within a framework incapable of and unequipped to recognise the fundamentally different cultural perspectives of customary ownership. The article argues that native title cannot evolve within a common law framework that regards ownership as a derivation of the English Crown. It is suggested that ultimately, a pluralist property culture, where indigenous and non-indigenous title exist as equalised entities, can only be properly nurtured with the full and absolute abolition of the feudal doctrine of tenure.

Time now is a gift for you

A gift of freedom

To think and remember and understand

The ever perplexing past

And to re-create yourself anew

In order to transform time

Ben Okri[1]

1. Introduction

The purpose of this article is to examine the continuing operation of the doctrine of tenure following the introduction of native title within Australian jurisprudence. Specifically, it is argued that the fundamental nature of feudal tenure, as adopted by the colonial authorities, is an inappropriate and inadequate principle for the regulation of Australian landholding.

In adopting the feudal doctrine of tenure, colonial law-makers within Australia created their own ‘self-interested truth’ — which, in the tradition of such power constructions, perpetuated their own interests. It was not until the Mabo[2] decision that the High Court indicated a preparedness to re-examine the validity of the ‘truths’ underpinning the application of feudal tenure within Australia. Nevertheless, whilst Mabo altered the character of these truths through the rejection of enlarged terra nullius and recognition of the existence of indigenous inhabitants, its ultimate effect was undermined by the decision to retain the doctrine of tenure; in effect this conclusion has reinstitutionalised the process by which such truths gained acceptance in the first place.

This article argues that it is time to break the inexorable imperial links and develop a distinctive and allodial Australian land system capable of incorporating the range of common law, statutory and indigenous interests which currently populate our land law framework. It is argued that the abolition of feudal tenure and its associated constructs would rid the system of an enduring, ethnocentric fiction, thereby encouraging courts to refocus upon the issue of whether native title exists, rather than how it exists.[3]

2. Feudal Tenure and Australian Land Law

The doctrine of tenure, as it exists in Australian land law today, was inherited from English common law upon settlement. The form of tenure that the Australian colonies adopted was similar to the early feudal version of tenure in that it assumed that the Crown acquired absolute ownership of land upon settlement. The adoption by Australian colonies of feudal tenure was rather incongruous given the fact that tenure in 19th century England had changed significantly from its feudal origins.[4] This incongruity was not a consequence of an injudicious social or historical homage. It is clear that the adoption of feudal tenure in the Australian colonies had a deeper political motivation; feudal tenure was inextricably linked to the notion of absolute Crown ownership, and the application of this principle to acquired territories invested Imperial authorities with power and control. This was particularly important in territories already occupied by indigenous inhabitants. Absolute Crown ownership enabled the courts to rationalise the destruction of indigenous title because no other form of ownership could exist within such a regime.[5]

The distinction between early feudal tenure and its nineteenth century counterpart is significant. By the 19th century, the feudal notion of a reciprocal land grant had all but withered; this was a consequence of legislative and social factors.[6] Statute of Tenures (1660) 12 Car 11, c24 was an act which resulted in the abolition of most forms of traditional feudal tenure, the fourth section of the Act declaring that any future tenure created by the Crown had to be a tenure in ‘free and common socage’.

A variety of different forms of tenure existed in feudal England. Temporal or lay tenures existed where secular people held land. Such tenures were then divided into two forms, free or base tenures. The frank or freehold tenures were: (1) knights service, with its variety of services including serjeanty, escuage, castle ward and cornage; and (2) free socage, with its varieties of petty serjeanty, borough-English, burgage tenure and gavelkind.[7] The base, customary or ‘villein’ tenures were: (1) pure villeinage, which was either copyhold or customary freehold tenures; and (2) privileged villein or villein socage — this tenure was primarily held by unfree men and is now obsolete having been converted into socage tenure.[8] Where a non-secular person held a tenure, it was classified as an ecclesiastical or spiritual tenure. There were two forms of such tenures: frankalmoign and tenure by divine service.[9]

The principle free tenure was socage and it became the usual form of tenure held in most parts of England. After the Statute of Tenures (1660) was passed many forms of tenure ceased. However, in England, much of the land continued to be held in the non-freehold tenure known as ‘copyhold’ — this tenure was not abolished in England until 1925.

When Australian colonies inherited the feudal version of tenure, they did not adopt the old feudal tenures associated with that regime. The only form of feudal grant implemented within Australia was free and common socage; a grant generally regarded as synonymous with absolute ownership in the hands of the possessor, without Crown reservation. It has been argued that the lack of reciprocity associated with a free and common socage actually implies a rejection of feudal principles, as noted by AR Buck in his analysis of Attorney–General v Brown. The counsel for defence in that case, Mr Richard Windeyer, expressly highlighted the allodial character of a free and common socage grant. Windeyer felt that the unquestionable meaning of the Statute of Tenures was:

That under the term free and common socage, the possessor of land would have, in effect, allodial tenure; the property meaning of the term allodial as defined by Blackstone was a holding of the entire of the property independent of any superior.... If the Crown as the mere divider of the land among its subjects could reserve anything for itself, then it would follow all that slavery which the Act of Charles II had meant to guard against.[10]

This argument was, however, rejected by the New South Wales Supreme Court, who concluded that in a newly discovered country, settled by British subjects, the feudal system is no fiction and all of its notions and principles must endure. The primacy of the feudal tradition was clearly enunciated in the classic statement of Stephen CJ when he concluded in Attorney–General v Brown that the feudal system of tenures was part of the ‘universal law of the parent state’, and, ‘on what shall it be said not to be law, in New South Wales’.[11]

The decision of the New South Wales court in Attorney–General v Brown is generally accepted as the foundation of Australian land law and effectively revived the ‘ghost of feudalism’.[12] There are, however, a number of significant concerns with this conclusion; in the first place, it was illogical to adopt the strict tenets of feudal tenure when that version no longer existed in England.[13] Second, it is arguable that feudal tenure and its fundamental tenet, absolute Crown ownership, was destroyed with the abolition of the feudal grants under the Statute of Tenures (1660). The remaining tenure, free and common socage, is more allodial than feudal in nature and is therefore inconsistent with the perpetuation of a feudal regime promoting absolute Crown ownership. The final and most compelling concern is the clear absence of any historical nexus with feudalism; how can a tenure regime inextricably linked to a feudal society be adopted by a country with no history or experience of feudalism?

The absence of any clear rationale explicating these concerns indicates the possibility of an alternative motivation. The adoption of feudal tenure and absolute Crown ownership was a convenient political device for land acquisition during the Imperial expansion; if the Crown was presumed to occupy the position of paramount lord, it would hold complete ownership over all land to the exclusion of any other. As noted by Professor Jenks:

If no subject could show a recognised title to any of the countless acres of America and Australia, at a time when those countries were first opened up by white men, it followed that, according to this relic of feudal history, these acres belonged to the Crown. It may seem almost incredible that a question of such magnitude should be settled by the revival of a purely technical and antiquarian fiction.[14]

Hence, the most obvious basis for the assumption of a feudal version of tenure by the Australian colonies was, ultimately, political. The Crown, in the words of Blackburn J in Milirrpum v Nabalco Pty Ltd, automatically became ‘the source of title to all land’, and ‘every square inch of territory in the colony became the property of the Crown’ in order to preclude the enforceability of any alternative property claim.[15] The political dimensions associated with the adoption of feudal tenure meant that its relevance to the social structure of the colonies was never properly explicated. The difficulty with this is that feudal tenure is, organically, a social dynamic; its tenets, particularly that of absolute Crown ownership, emerged from a feudal society and arguably have no relevance to a non-feudal society with indigenous inhabitants.[16]

If the ‘roots of the doctrine of tenure lie in the economic and political interstices of the feudal system’, an examination of the medieval feudal infrastructure is important to highlight its irrelevance not only to Australian land law, but more significantly, to indigenous inhabitants and indigenous title.[17] Feudal tenure has existed as a fundamental impediment to the recognition of native title interests since its inception in Australian land jurisprudence; it is not just that the doctrine is socially and historically irrelevant to Australia, but more fundamentally, it has come to represent an apparatus for the obliteration of indigenous interests and, ultimately, indigenous existence.

To fully appreciate the need for a systemic change in our land infrastructure, the precise nature of the feudal redundancy must be carefully explored. This analysis begins with a detailed examination of ‘the foundation, upon which what remains is erected’.[18] The nature of the medieval feudal dynamic is examined to properly highlight the distinction between the feudal purity associated with Norman England and the feudal corruption associated with imperial colonialism.

3.The Historical Prototype: The Nature of Medieval Feudal

Tenure

In medieval feudal society, tenure was a vital component of an interdependent social structure.[19] Feudal tenure in Norman England provided much needed social cohesion and was economically and geographically suited to the landscape and community of the time.[20] Feudal tenure was, in essence, a social phenomenon of the feudal society that existed in Norman England; it represented a synthesis of ‘primitive decentralisation and imperial order’ and stratified society on the dual grounds of tenure and fealty.[21] More specifically, Maitland defines feudalism as:

A state of society in which the main social bond is the relation between the lord and man, a relation implying on the lord’s part protection and defence; on the man’s part protection, service and reverence, the service including service in arms. This personal relation is inseparably involved in a proprietary relation, the tenure of land — the man holds of the lord, the man’s service is a burden on the land, the lord has important rights in the land, and (we may say) the full ownership of the land is split up between man and lord.[22]

It is generally accepted that medieval feudalism commenced with the invasion of England by the Normans.[23] Whilst feudalism itself can be traced back to Norman custom, English feudalism flourished with the administrative aptitude of the Normans following the conquest of England in 1066. Feudal society was not unique to England, being a very old system that, with particularised differences, has existed in three-quarters of our hemisphere.[24]

Feudalism has its origins in the decline of the Roman Empire — which sent much of Western Europe into chaos and disorder. In such an environment, the desire for peace and security was an important contribution to the successful acceptance of feudalism.[25] English feudalism could be distinguished from that which developed in European cities by its sweeping and universal application; the conqueror was the paramount lord over all of the land, meaning that in theory, no allodial or ‘free’ land remained.[26]

Contemporary perceptions of English feudal society tend to focus upon the pyramid nature of the power infrastructure, with power and title to all land emanating from the king who was at the peak of the pyramid — his powers coming in turn from the divine authority of the Church. Whilst this depiction is accurate, the essence of feudal society was deeper and more complex in nature, having legal, political and social manifestations.[27]

Feudal society was firmly embraced by the Normans and the Saxons because it was perceived as the best way of ensuring protection in circumstances where bonds of kinship were inadequate and the power of the state was weakening.[28] Feudal society was based upon social classification and interdependence; being structurally unequal rather than hierarchical in nature, it was a system enunciated by the sovereign lord as a means of reinforcing and retaining ultimate power. In this sense, feudalism represented, in essence, the culmination of coordinated power.[29]

The primary method in which such power was acquired was via the granting of landholdings from the sovereign lord. The mode of holding or occupying land from the sovereign lord became known as ‘tenure’. In accordance with the principles of tenure, all land in the hands of subjects were held of some superior, and mediately or immediately of the Crown. The possessor of the land is known as a tenant, the manner of his possession is known as tenure, and the extent or duration of his interest is as an estate.

Every tenure contained tenurial incidents. In medieval England, the incidents of tenure included: military service; homage, fealty and suit of court; wardship and marriage; relief and primer seisin; aids and escheat; and forfeiture. Most tenurial incidents were abolished in England by the Statute of Quia Emptores (1290), the Tenures Abolition Act (1660) and the Law of Property Act 1922 and 1925.

Despite the numerous, complex divisions of tenurial arrangements in existence within feudal England, feudalism was far more than simply a landholding system; it was a social configuration which defined both the power infrastructure and social network underlying the entire community. In a legal sense, feudal tenure was an institution with defined tenurial forms and obligations; however, in a broader sense, it was the manifestation of a social exemplar. To gain a greater understanding of the operation and social character of feudal tenure it is necessary to imagine the ingrained texture of power, hierarchy and personal relations; ultimately, the framework of institutions which regulate a society can only be fully understood through a better appreciation of its human environment.

In the feudal society of Norman England, land was regarded as the source of all privilege and the basis of civil rank.[30] One of the reasons for this was that under the feudal regime, the sovereign lord owned all land and decided when and how a land grant should be issued. Consequently, land became a valuable commodity, and a tenurial grant conferred social prestige and acceptance. Rank, social status and military power were important social requirements within English feudal society. In order to retain military strength and ensure the proper protection of English boundaries, a large army was vital. The sovereign lord acquired much military power by exchanging vows of military loyalty in exchange for land grants.

Tenants or vassals to the land were committed to support and protect the sovereign lord and, in return, received a guaranteed possession over their estate. Under such a system, the sovereign lord became the ultimate benefactor, rewarding his vassals with land and rank in return for loyalty and military allegiance. The process of allowing the King’s vassals to ‘sublet’ to their own vassals later became known as subinfeudation — and theoretically the feudal chain was infinite. Each intervening holder was known as a ‘mesne lord’ and, during the 13th century, as many as six or seven mesne lords could be interposed between the sovereign lord and the actual tenant in possession.[31]

Subinfeudation became the cornerstone of the medieval feudal framework; its abolition by the Statute of Quia Emptores (1290) changed the whole perspective of tenure, as it removed the feudal pyramid.[32] When Australia adopted feudal tenure, subinfeudation was no longer possible and all land was held directly of the Crown.[33] This is a significant distinction given the fact that in medieval England, the primary rationale for absolute Crown ownership was the legitimation of subinfeudation landholdings which had not emanated from the King; if the King was the paramount lord, it could presume that all land titles were, ‘fictionally’, held by the King’s subjects through a Crown grant. A system that did not recognise subinfeudation had no need for this ‘fictional’ assumption of control.

Feudalism in medieval England revolved around a complicated system of interdependence; a man’s standing in feudal society came to be judged by the rights he enjoyed in his benefice and the ranking of the lord from whom he received such rights. Within such a system, the state had little to do with social regulation; all feudal arrangements were essentially private in nature. Feudal society was bound together by the personal oaths of individual men to individual lords rather than a sense of communal obligation to the state.[34]

The service that a vassal owed in return for a benefice was particularised — each vassal’s ‘tenurial incidents’ were based upon individual convention or tradition. The continuing obligation of the vassal to perform the tenurial services highlighted the reciprocal nature of the relationship and also emphasised the limited nature of the grant. During feudal England it was very clear that the vassal held the land of the lord; the continuity of the tenurial obligations and the active presence of the lord provided clear and unequivocal evidence of the mutual acceptance of universal sovereign ownership.

Structured power and social relations provided a strong sense of unity and a greater assurance for the Saxons than that which had existed in the relative ‘anarchy’ prior to the conquest. In this respect English feudalism gave the ‘whole people, one common interest, one common sentiment and one common design’.[35] Upon taking the throne after the Battle of Hastings, King William swore an oath to govern two sets of people under equal laws.

This ‘social’ duality within Norman England meant that the Saxons never truly regarded themselves as ‘assimilated’ with the Normans; the direct recognition of ‘equal laws’ for both the Normans and the Saxons stirred the Saxons to incessantly claim their special right to be regulated according to the Saxon laws of Edward the Confessor.[36] Feudal society within Norman England proved it was capable of recognising the existence of two distinctive groups, however this binary culture was not reflected in the operation of the tenurial system.

Nevertheless, it is significant to note that the customary law that existed prior to feudal tenure continued to be recognised and enforced under the manorial system — in accordance with the individual custom of the particular manor — such relations being subsequently described as ‘copyhold tenure’.[37] The continuing enforceability of copyhold tenure within the feudal system indicated the willingness of the common law to recognise and enforce well-established customs existing outside the tenure infrastructure. If the local custom could be proven to have been a ‘local law before the time of legal memory’ then it was recognised by common law.[38]

The feudal society that emerged after the conquest of the Normans was primarily a reaction to the specific needs and objectives of the social environment and culture in existence at the time. Universal ownership of land by the sovereign lord was a characteristic unique to feudal tenure, allowing the accumulation of great military strength by the sovereign lord and encouraging the creation of complex chains of social interdependence. Significantly, universal ownership within feudal tenure was a lively dynamic; the sovereign lord actively upheld title in order to implement tenurial obligations. This stands in stark contrast to the artifice of a ‘stagnant’ sovereign holding a ‘fictional’ ownership in subsequent tenurial overtures within the Australian land system.

Feudal tenure was an integral component of the social filament of Norman England — it flourished because it responded to social demands. The same could never be said of an Australian feudal tenure regime; there was no nexus between the social construction of colonial Australia and feudal tenure. The conspicuous absence of any feudal society within the annals of Australian history made it clear that, unlike the feudal tenure that existed during Norman England, Australian feudal tenure was not a social exemplar and did not reflect a social culture. The adoption of a feudal tenure regime and the assumption of absolute Crown ownership in Australia were, therefore, abstracted and artificial — quite different to its organic evolution within Norman England.

4. Tenure in Early Australian Colonies
A. A Paradoxical Culture

There is a cogent argument to suggest that strictly, feudal tenure and absolute Crown ownership have no relevance to any society other than Norman England; this was something specifically recognised by Brennan J in Mabo when he noted ‘universality of tenure is a rule depending on English history and that rule is not reasonably applicable to the Australian colonies’.[39]

When the doctrine of tenure was applied to Australian colonies, there was no need for it to emulate the feudal model that existed within Norman England; Australia had no feudal history and the structure of colonial society was far from feudal in character. The distinct social and geographical landscape of colonial Australia provided a unique potential to develop a specifically Australian doctrine of tenure. Unfortunately, this could only have developed in a responsive environment, and the first Australian settlers were ‘already horizoned with precedents, conventions and expectations’.[40] Consequently, it was, in many ways, legally and culturally inevitable that colonial Australia would rigorously enforce a feudal regime with no social or practical relevance.[41] The approach taken by Australian colonists in this regard can be starkly contrasted with that of their American counterparts, encapsulated in the claims by Thomas Jefferson that each generation holds a usufructuary right to land and is free to create its own social order without constraint from the actions of past generations.[42]

The lack of a clearly defined and properly structured central sovereign within the colonies meant that there was little logic in adopting a feudal regime founded upon the interchange of land for loyalty and services.[43] Australian colonists wanted to acquire land, apply ownership rights to it, then cultivate, irrigate, build on it and establish an agricultural and pastoral industry. This desire highlighted the perception that land grants issued in colonial Australia were more absolute in nature than traditional feudal tenures; the attitude, endemic within such a vast and inscrutable colony, was that land was ‘theirs for the taking’. As noted by Crispin J in Re Thompson; Ex parte Nulyarimma:

the early settlers displayed a seemingly insatiable demand for vast tracts of land. The chance to build up flocks of sheep unrestrained by the familiar confines of the small farms of England held out the lure of real wealth. Few seemed to have been deterred either by their own lack of title or by the rights of the traditional owners.[44]

This acquisitive instinct accorded with the cultural imperatives of early settlers: survival and elimination. Logically, feudal tenets should have been adapted to accord with the practical expectations of a colonial environment.[45] Accepting for the moment that the assumption of feudal tenure within colonial Australia was valid, there was no legal impediment to a formal ‘revision’ of its tenets to better accommodate the unique demands of a different social context. Indeed, it is arguable that revision and modification of this kind is crucial for the survival of any ‘adopted’ infrastructure.[46]

Instead of presuming the validity of a moribund feudal regime it would have been more proactive for colonial jurists to have recast tenure as a colonial phenomenon — capable of adapting to the specific demands of a new social, geographical and cultural atmosphere.[47] The failure of colonial lawmakers to even address the suitability of feudal tenure illustrates one of the central paradoxes of Australian settler colonialism — the subversion of a reactive colonial politic into the cumulative narrative of British imperialism.[48]

B. Fact versus Fiction: Statutory and Feudal Tenures in Colonial Australia

The progression of the colonies, following the inception of the Imperial Land Act 1831, produced a period of intense ‘land commerce’. Settlers became increasingly interested in the acquisition of land with the aim of establishing pastoral enterprises.[49] The early days of Australian colonial life were particularly strife-ridden. Formal legislative authority was introduced in the colony of New South Wales in 1823 following the introduction of The New South Wales Act (1823) 4 Geo IV, c96. Judicial authority followed close behind with the introduction of The Australian Courts Act (1828) 9 Geo IV c83. The colonial secretary was authorised to supervise the granting of land. Small grants of land of approximately 50 acres or less were generally issued as freehold estates and were regulated appropriately by the land authorities; however, as the settlers began to push for more and more land to feed an economy which was essentially pastoral in nature, proper control and regulation became difficult if not impossible.[50]

The conferral of broad, unregulated discretion upon the grantees to deal with the land as they saw fit became common.[51] This discretion was frequently set out within a statutory land grant, as the format was better suited to the detailed nature of pastoral land grants. Furthermore, the utilisation of statutory tenures avoided the problems associated with the regulation of a vast landscape by a difficult and immature government administration.[52]

The early Governors had express powers to issue grants of land and, until granted, such land formed a royal demesne.[53] Land that was not granted from the Crown was considered to amount to ‘waste land’.[54] Up until 1859, with the introduction of representative government in New South Wales, Imperial authorities assumed control over Crown lands and sought to maximise revenue via the settlement and sale of waste lands. Section 2 of the Constitution Act 1855 (NSW) vested the control and management of Crown waste lands in the New South Wales legislature and allowed the colonial government to regulate the sale and disposal of such lands.

The corporeal nature of the Australian landscape was not easy to ignore; huge tracts of unexplored, dense, harsh scrub land was supposed to have vested in the Crown and therefore be subject to Crown regulation. English authorities could not possibly hope to regulate such large and inaccessible areas of land under the traditional auspices of common law tenure. Consequently, the Colonial Government began to assert greater regulatory control through the issue of statutory grants and, despite the feudal rhetoric, Australian land grants gradually developed a distinct perspective.[55] The statutory tenure emerged as an identifiable and unique feature of Australian land law quite unlike anything that had been conceived or recognised previously within feudal England.

The fundamental distinction between statutory and traditional feudal tenures lay in the fact that the statutory tenure was capable of direct and specific expression whereas the feudal relationship was more ambiguous and amorphous.[56] The particularisation of rights was, as noted by the High Court in Wik Peoples v Queensland, a new ‘institutional form’ far better suited to the local circumstances of the Australian landscape.[57] This was primarily because each statutory tenure could uniquely adapt its provisions and amend its ‘bundle of rights’ to accord with the requirements of the particular region.[58] Statutory tenures enabled colonial administrators to ‘transcend traditional concepts and develop innovative forms of tenure which balanced a range of competing interests thereby demonstrating the ability of a legal system to adapt to particular circumstances as part of the continued viability of that system’.[59] Colonial law-makers were prepared to diverge from strict feudal assumptions in their desire to develop and adapt the land infrastructure to the evolving resource economy.[60] In the words of Toohey J in Wik:

To approach the matter by reference to legislation is not to turn one’s back on centuries of history nor is it to impugn basic principles of property law. Rather, it is to recognize historical development, the changes in law over centuries and the need for property law to accommodate the very different situation in this country.[61]

This is not to deny the patent difficulties that the colonial legislators experienced in the granting and regulation of statutory tenures, and the fact that vast areas of land covered by the pastoral leases were unsurveyed and the activities of the squatters uncontrolled.[62] Gradually, the land of the colony was divided into settled and unsettled areas. The difficulty in policing unsettled areas eventually resulted in statutory intervention in the form of the Crown Lands Occupations Act (NSW) and the Crown Lands Alienation Act (NSW) in 1861 which were intended to regulate the occupation and sale of unalienated Crown land.[63]

Whilst the aim of the legislation was to introduce a structured range of statutory tenures relevant to particular rural areas, the reality was far different. The legislation promoted the inception of a ‘seething trough of tenures of capricious incidents and impenetrable obscurity with little clarity, logic or consistency’,[64] as colonial legislators attempted to reconcile tenurial estates with the physical and economic reality of Australian land holdings. The diversity, preponderance and ‘bewildering multiplicity of tenures’,[65] was not restricted to rural areas of the New South Wales colony; in Queensland, for example, 70 different kinds of Crown leasehold and Crown perpetual leasehold tenures existed.[66]

These difficulties were referred to by Gummow J who, in Wik, pointed out that when colonial legislators assumed control over Crown waste lands, it resulted in a proliferation of new forms of statutory tenure, teeming with ‘proverbial incongruities’ and premised upon the assumption that the local common law did not recognise any ‘allodial species of estate which was held independently of any grant by the Executive Government or of any grant by or pursuant to statute’.[67]

The statutory tenure was, despite its rapid escalation, a distinctive innovation that clearly distinguished colonial tenure from the classical feudal narrative. There were many other emerging peculiarities within colonial tenure. Australian land grants, unlike their feudal ancestors, were never held of any intermediate or mesne lord because no subinfeudation existed.[68] Furthermore, unlike feudal tenures, most statutory tenures contained express reservations, giving the Crown an enforceable right to the minerals and natural resources existing below the surface of the land. This type of tenure was far removed from rights conferred under traditional feudal tenures that attached services and incidents but never reservations.[69]

The use of reservations within Australian land grants created a different relational perspective. The character of the obligations that the tenant owed to the overlord — the essence being social interaction and exchange — essentially defined feudal tenures. By contrast, the statutory tenures that emerged within the colonies were more akin to an individualised land grant with specified restrictions; the grantee had full control of the land in most situations except for the fact that the Crown retained the right, generally, to dissipate valuable mineral resources.[70]

Other distinctions in the colonial apparition of feudal tenure flowed from the absence of historical circumstance. For example, copyhold tenure was unknown as there was no such thing as ‘manors’.[71] Furthermore, the ‘modernity’ of feudal tenure within colonial Australia meant that original Crown titles were freshly issued and directly traceable, whereas in England, it is largely impossible to trace title back to the original Crown grant. Hence, in England, feudal tenure presumes a ‘notional, yet largely untraceable-out-of-mind infeudation’ whereas in colonial Australia, most grants remain capable of direct and authentic examination.[72]

Each ‘colonial’ variation highlights the fact that Australian tenure has always been far more individualistic than that which existed within Norman England.[73] Statutory tenures, particularly fee simple grants, were express, comprehensive and imbued with a more absolute, allodial character.[74] Given the unique social circumstances and isolated geographical context of colonial Australia, it was clearly impossible to emulate the strict binary character of the feudal dynamic in a colonial outpost, hundreds of years after the cessation of feudalism. In such circumstances, the gradual move towards a more allodial perspective is, despite the feudal rhetoric of the colonial courts, inevitable. A similar process occurred within the United States, as noted by Chancellor Kent, in 1828:

Thus, by one of those singular revolutions incident to human affairs, allodial estates, once universal in Europe, and then almost universally exchanged for feudal tenures, have now, after the lapse of many centuries, regained their primitive estimation in the minds of freemen.[75]

In hindsight, the main difficulty that colonial tenure faced was the increasing disparity between fact and fiction; whilst colonial jurists perpetuated the feudal fiction, the actual circumstances of Australian tenure were quite unrelated. The absurdity of importing ‘notions of the common law apt for tenurial holdings under the Crown in medieval England’ into a land system founded upon distinctive expressions of statutory grant was emphasised by Kirby J in the Wik decision but nevertheless endured.[76]

This situation highlights two significant points; first, the adoption of the feudal version of tenure was not a consequence of any direct social or contextual relevance. Second, the colonial jurists were prepared and had the capacity to adapt and modify feudal assumptions when it suited. The localisation of Australian tenure made the feudal myth more obvious; in form feudal tenure endured as a static doctrine but in practice its attributes evolved into a unique and highly localised system. As outlined by Dr Fry:

A century of subsequent legislation by the various legislatures of Australia has developed a new system of land tenures in the various Australian States and Territories so that it is now possible to say, with a very high degree of accuracy, that the constitutional supremacy of Australian Parliaments and the Crown over all Australian lands, as much as the feudal doctrines of the Common law, is the origin of most of the incidents attached to Australian land tenures.[77]
C. Imperial Ideology: A Culture of Constraint

Colonial jurists consistently upheld the inherited version of feudal tenure despite the highly localised evolution of Australian tenure; in particular, the courts adhered to the feudal presumption of absolute Crown ownership. In the classic words of Isaacs J in Williams v Attorney-General for New South Wales:

It has always been a fixed principle of English law that the Crown is the proprietor of all land for which no subject can show a title. When Colonies were acquired this feudal principle extended to the land overseas.[78]

This ‘purely technical and antiquarian fiction’ was resolute despite the social and systemic difficulties associated with the importation of feudal tenure.[79] As noted by Professor Jenks, there was ‘no statute, no struggle, no heated debate’; the Crown quietly assumed the ownership of Australian land under the auspices of feudal tenure.[80]

The adoption of one universal sovereign did have cultural undertones. Colonial Australia had a very strong Imperial allegiance that was nurtured on convention, orthodoxy and constraint.[81] The first settlers were imbued with a keen appreciation of English tradition and regarded themselves as inextricably bound by inherited English law. As noted by Bruce Kercher:

For more than a hundred years after the mid-nineteenth century, most of the judges of the Australian courts subscribed to a combination of imperialism and formalism, under which the law was assumed to derive from England both in its authority and in its detailed content.[82]

The strong sense of Imperial loyalty that pervaded the colonies meant that settlers did not actually perceive themselves and their landscape in an individualistic sense.[83] England had bequeathed a cultural homogeneity; early settlers ardently regarded themselves as an imperial outpost, fundamentally obliged to adopt all of the prescriptive tenets of English land law.[84] In this role, the settlers chose to reinforce the history-drenched ‘English prototype’ of land grants regulated by one paramount lord.[85] There is no clear rationale for the overwhelming sense of obligation and duty displayed by early Australian settlers towards Imperial England. Possibly, the sense of isolation and despair experienced by many new settlers in a vast and harsh landscape led them to seek solace, security and a sense of belonging from the traditions of the ‘motherland’ instead of seeking ideological revolution.[86]

Feudal tenure and absolute Crown ownership acquired automatic legitimacy as, inherited from England, they were perceived to be a valid component of the established, socially institutionalised discourse. On an economic level, feudal tenure was consistent with ‘capitalist colonisation’, therefore the primary economic imperative was to reconstitute a social structure that accorded with the overriding requirements of capitalism.[87] This produced an interesting antilogy between imperial culture and colonial context; as the Australian economy evolved, a tension emerged between the perceived economic benefit of the feudal structure and the practical demands of regulating a vast and progressive pastoral industry.[88]

The ideological constraints which characterised early Australian colonists can be starkly contrasted with the individualistic, revisionist ardour of erstwhile American colonists.[89] American settlers perceived themselves as founders of a new and distinctive land, at liberty to develop a free and independent set of landholding rules to suit the individual character of the land and its people. It is clear from the early writings of Thomas Jefferson that the American settlers regarded the new country as a form of political independence, a victory in the pursuit of libertarian and egalitarian ideals.[90]

The sense of self worth and autonomy associated with many American colonists meant that they were more readily able to overthrow the social and legal vestiges of English feudalism and proclaim the feudal origins of land law to be irrelevant to the circumstances of American colonies.[91] In New York, the legislature expressly abolished feudal tenures of every description, with all their accompanying incidents, and declared that all lands within that State were allodial. The desire to move away from feudal tenure and to re-establish an allodial title is patently clear from the express words of s11 of the US Constitution which states:

The people of this State, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the State; and all lands, the title to which shall fail, from a defect of heirs, shall revert or escheat to the people.[92]

The progressive temperament of American colonists led to the development of a more regionalised land system whereby land interests mirrored the social environment in which they were regulated.[93] This distinctive cultural environment encouraged proprietary adaptability over the hierarchical narrative of feudal tenure.

D. Tenure as a Political Device: Sovereignty Tenure and Colonial

Imperialism

Apart from the obvious cultural constraints faced by Australian settlers, there was a deeper, political motivation underlying the adherence to feudal fiction. Adoption of the direct tenets of feudal tenure meant that, theoretically, the Crown would become the universal owner of all land to the exclusion of indigenous occupants.[94] This was a convenient consequence for Imperial authorities; it provided an absolute rationalisation and legitimacy for Crown ownership as against any claim that indigenous occupants might seek to make. It also appeared to represent a solution to the possible problem of prior indigenous possession and occupation of the land, even though the application of feudal absolutes in such circumstances is questionable.[95]

The core political motivations underlying the adoption of feudal tenure make it more accurate to define the doctrine as ‘sovereignty tenure’. Colonial administrators assumed the primacy of the feudal regime, in spite of its obvious practical inadequacies and deficiencies, in order to rationalise the assumption of a full sovereign title by the Crown.[96] Sovereignty tenure functioned as an apparatus for colonial imperialism because it allowed the Crown to take complete control and possession of all land in the colony, without having to take into account the interests of indigenous occupants. Sovereignty tenure was assumed rather than rationalised; it was a product of political aspiration, adopted by colonial jurists without debate, analysis or revision.[97] This represents a stark contrast to the evolution of feudal tenure during Norman England where it was an inextricable component of a comprehensive social revision.

There was certainly no legal compulsion behind the adoption of sovereignty tenure within colonial Australia; British law did not require the feudal doctrine of tenure to be applied in territories acquired outside England.[98] The supposition that sovereignty tenure automatically applied to Australian colonies is, in the words of Holdsworth, a ‘purely English phenomenon’, and therefore a product of an expansive English homology. Indeed, the legal foundation underlying the adoption of sovereignty tenure within colonial Australia contained many inherent deficiencies. One of the most disturbing was its assumed application to land which was, in clear and unequivocal terms, an inhabited land, occupied by indigenous Aborigines since time immemorial. The legal dilemma faced by the Australian settlers was accurately outlined by Henry Reynolds who noted that:

The presence of the natives was an inescapable political, geographic and legal reality. While the settlers could appeal to ancient principles of law and argue that all property rights must emanate from the sovereign, the natives could stand on an even older and much more ubiquitous legal principle — the rights of immemorial possession.[99]

Colonial lawmakers were able to avoid the legal questions associated with prior possession by ignoring the existence of indigenous inhabitants and presuming that such silence sustained the legitimacy of settlement.[100] Had there been a legal examination or judicial inquiry, English common law would undoubtedly have supported the rights of the indigenous inhabitants to the land as prior possessors.[101] However, no such legal inquiry ever occurred; sovereignty tenure applied because colonial jurists chose to assume that indigenous occupants did not exist and that the application of English law was automatic.[102] The silent acceptance of sovereignty tenure by colonial jurists, and the assumption that they had the power to make such a ‘choice’ in the first place, is an innate characteristic of imperialism and its deeper hypothesis: cultural superiority.[103] Recognition of the existence of indigenous occupants was directly antagonistic to established imperial expansionist goals.[104]

It is nevertheless difficult to understand the unquestioned application of such a legal polemic. Perhaps colonial law-makers feared that without absolute sovereignty, the physical actuality of indigenous occupation might prevail;[105] the early colonial courts were certainly very keen to reinforce the feudal vision of a sovereignty that assumed an unqualified conferral of imperium and dominium to the Crown.[106] In the words of Brendan Edgeworth, in colonial Australia, ‘the foundational feudal principle of real property law that characterised ownership as coextensive with sovereignty was held to apply in its entirety’.[107]

Universal ownership was adhered to with an imperturbable conviction by colonial law-makers, despite the physical and historical singularity of the Australian landscape. In Attorney-General v Brown Stephen CJ held that ‘the wastelands of this Colony are, and ever have been from the time of its first settlement in 1788, in the Crown’. The ‘fiction’ of original Crown ownership operated to vest the property in waste lands in the sovereign.[108]

This is not to suggest that absolute Crown ownership of all waste lands was a necessary and enduring feature of feudal tenure. Indeed, in Norman England, many land holdings were left undisturbed after the conquest of William I; the Crown acquired power as a sovereign to grant land to others, rather than universal ownership over all land.[109] Many Saxons continued to retain allodial ownership over unalienated land.[110] There was nothing particularly unusual about this, as the common law has an established history of upholding the validity of customary law and practices that have been undertaken since time immemorial.[111] Furthermore, it was well established that the mere assumption of sovereignty should not necessarily disturb established proprietary principles.[112]

Hence, the interconnection between feudal tenure and absolute ownership can be regarded as a peculiarly colonial expression. This point was raised by Gummow J in Wik who noted: ‘The concept of ownership by the Crown over all land is a modern one, and its adoption in legal theory may have been related to Imperial expansion ... well after the decline of feudalism’.[113]

The idea, perpetuated by colonial jurists, that the adoption of feudal tenure necessitates the assumption of absolute beneficial ownership is essentially a contrivance — an extension of the political agenda.[114] This was raised by the Federal Court in Lansen v Olney who noted: ‘territorial sovereignty may not equate, even under the common law doctrine of tenure, to absolute beneficial ownership, the latter being arguably alien to the medieval case of mind’.[115]

Arguably this ‘idea’ transcended the scope of British imperial constitutional principles.[116] Furthermore, the failure of colonial jurists to properly rationalise the need for this feudal ‘extension’ produced a chasm between construct and reality; a legal void where ‘irrational realities are substituted for rationalised fictions’.[117] This was aptly summarised by Kent McNeil when he noted:

The fiction that the Crown once owned all the lands in England, some of which it then granted to subjects, was a device invented by common law jurists to justify the feudal concept of the Crown’s paramount lordship over lands held by subject.[118]

The colonial courts did attempt to legitimate Crown ownership on other grounds. Where territory was uninhabited, British constitutional law entitled the Crown to acquire title by occupancy.[119] Occupancy title was discussed in Attorney-General v Brown by Stephen CJ who insisted that title by occupation over waste lands was ‘no fiction’ and did in fact confer a real and actual title upon the Crown.[120] The acquisition of occupancy title could, however, only be legitimated in areas actually occupied by the Crown. This level of occupation simply did not occur within colonial Australia.[121] Consequently, absolute Crown ownership over all occupied and unoccupied land could not be legitimated under the occupancy rationale alone.[122]

Hence, the assumption of absolute ownership became dependent upon the colonial construct of tenure. Sovereignty tenure was the only means by which Crown dominium could be legitimated.[123] Feudal tenure would only confer absolute ownership over land, which was the subject of a tenurial grant; the colonial version assumed, however, that it was the adoption of tenure, rather than the issuing of the grant, which conferred ownership upon the Crown; consequently, under sovereignty tenure, the Crown held absolute ownership over land where no tenurial grant existed. This was legal fiction in its purest form. Nevertheless, the colonial court consistently upheld it.[124] In Attorney-General v Brown the court categorically concluded that feudal tenure was ‘the foundation of the original title of the Crown’ and the source for all other land titles in Australia.[125] In Williams v Attorney-General for New South Wales, Isaacs J stated:

It has always been a fixed principle of English law that the Crown is the proprietor of all land for which no subject can show a title. When Colonies were acquired this feudal principle extended to the lands overseas.[126]

In the same case, Barton ACJ[127] observed that upon acquisition of territory under the feudal principles, ‘[t]he whole of the lands of Australia became the property of the King of England’. Nearly 60 years later, in Milirrpum v Nabalco Pty Ltd, Blackburn J continued this judicial tradition, concluding: ‘every square inch of territory in the colony became the property of the Crown. All titles, rights and interests whatever in land which existed thereafter in subjects of the Crown were the direct consequence of some grant from the Crown’.[128]

Ultimately, the sovereignty agenda of feudal tenure obscured its practical relevancy to the colonial landscape.[129] In their haste to promote the notion of ‘universal ownership’ colonial lawmakers failed to consider the enduring benefits that adaptation, modification and localisation could provide. English law expressly anticipated that colonists would only take ‘so much of the law as is applicable to their own situation and the conditions of the infant colony’.[130] This approach was categorically endorsed by Sir Kenneth Roberts-Wray who noted that the doctrine of tenure must ‘be applied subject to local circumstances; and in consequence, English laws which are to be explained merely by English social or political conditions should have no operation in a colony’.[131]

As the Australian colonies increased in size, the courts presumed that sovereignty tenure would gain greater practical relevance.[132] In Cooper v Stuart, Drummond J noted that English law was applicable to the conditions of the ‘infant colony’ and ‘as the population, wealth and commerce of the Colony increased, many rules and principles of English law, which were unsuitable in its infancy were gradually attracted’.[133] The evolution of the Australian colonies, however, showed no such thing; as the colonies grew in size and commerce, colonial administrators were forced to rely increasingly on legislative innovation and abandon the strict tenets of the feudal regime.

The utilisation of legal history, and in particular the misappropriation of feudal conceptions of sovereignty, was the direct product of an imperial framework.[134] In Wik, Gummow J concluded that any methodology which attempts to regulate the use of history in the formulation of legal norms might be said to be ‘but a rhetorical device to render past reality into a form useful to legally principled resolution of present conflicts’.[135] This issue was powerfully addressed by Henry Reynolds, who stated:

Australian jurists didn’t have to keep Australian law in the straight-jacket forged by the eleventh and twelfth century legal armourers. They chose to do so. Whether by design or not it gave them a powerful weapon to use against the Aborigines.[136]

The unquestioned judicial acceptance of sovereignty has, over the years, imbued it with an almost inviolate character. The weight of time and habit has increased the judicial perceptions of the doctrine of tenure as an immutable component of our property ideology, and this has inured it against critical reassessment. This was not a consequence of any increase in its social or proprietary relevance, but rather in the reinforcement of its perception as a relevant and foundational principle. As time went on, this perception was increasingly fortified; it was clearly evident in the comments of Brennan J in Mabo, who concluded that the doctrine of tenure is an ‘essential principle of our land law’ and that it was ‘far too late in the day to contemplate an allodial or other system of land ownership’.[137] The courts are reluctant to disturb tenure and will generally do whatever they can to maintain the status quo.[138] Nevertheless, the historical reassessment that the recognition of native title necessitated has, it is argued, changed the position so fundamentally that the abolition of sovereignty tenure is now imperative.[139]

5. Tenure within Contemporary Australian Land Law
A. The Mabo Transformation

As the Australian property infrastructure developed, colonial concerns over sovereignty and the physicality of title were replaced by broader, conceptual concerns. Increased attention was given to the nature of the estate relationship interposed between the Crown and the land grantee, and the rights and incidents it conferred; increasingly, what became relevant was not why we owned the land, but rather how we owned it.[140]

In such an environment, the impetus for sovereignty tenure deteriorated. This ‘reductive’ status meant that the ongoing validity of tenure was primarily ‘to enable the English system of private ownership of estates held of the Crown to be observed in the colony’.[141] Sovereignty tenure was gradually transformed into a highly fictionalised articulation of common law estates; courts increasingly overlooked the early sovereignty motivations underlying feudal tenure, and focused upon the idea that all estates and interests were dependent on the doctrine of tenure for their existence.[142] There is an irrational quality to this assumption, particularly in a landscape where legislative grants and statutory incidents have a significant presence and have evolved in spite of the feudal regime, rather than because of it.[143]

When the decision of the Mabo High Court was handed down, the landscape was altered so fundamentally it was no longer possible to perpetuate a feudal vision of tenure. The Mabo High Court rejected the discriminatory principles that prevented the legal recognition of indigenous existence, allowing them, for the first time, to recognise the proprietary validity of native title. This was a significant shift in judicial perspective. Up until this point, the combined effect of enlarged terra nullius and sovereignty tenure absolutely precluded the enforcement of any indigenous proprietary interest. The feudal version of tenure that colonial Australia adopted assumed that the Crown was the absolute owner of all land, and that this necessarily precluded the recognition of any title that did not emanate from the Crown.

The Mabo decision significantly disturbed the prevailing tenurial assumptions. Toohey J in Wik summarised the ‘turmoil’:

The decision of the court in [Mabo (No 2)] introduced a new and radical notion. It disturbed the previous attempts of the Australian legal system to explain all estates and interests in land in this country by reference to the English legal doctrine of tenure derived ultimately from the sovereign as Paramount Lord of the Colonies as he or she had been in England after the conquest.[144]

One of the significant issues arising from the Mabo decision was whether the doctrine of tenure could survive the removal of its sovereignty core: absolute Crown ownership. The rejection of enlarged terra nullius and the adoption of a radical Crown title, amenable to native title encumbrances, meant it was no longer possible for the Crown to assert absolute Crown ownership. This revision would not necessarily have destroyed feudal tenure as it had existed within Norman England because absolute ownership was not a vital feature of this regime; it only existed over alienated land and did not exist over land which was not the subject of a Crown grant. However, under the colonial version of feudal tenure, Crown ownership was presumed to be absolute over all alienated and unalienated land. Hence, when the Mabo High Court adopted radical title, sovereignty tenure, the colonial expression of feudal tenure, was necessarily destroyed.[145]

The Mabo High Court did not, however, address this issue. The High Court reinstitutionalised the feudal doctrine of tenure without considering whether it was possible that the doctrine, as it had manifested itself within colonial Australia, could continue. In perpetuating the doctrine of tenure the Mabo High Court were following in the steps of a well established history of judicial orthodoxy. The idea that it is ‘too late in the day’ to reject the doctrine of tenure and adopt an allodial regime is somewhat ironic given the fact that it was the first time the courts had actually addressed the issue of sovereignty and tenure validity. It was disappointing that the court did not take the opportunity to further examine the implications their adoption of radical title would have; not just upon the character of sovereignty tenure but upon its basic capacity to regulate and embrace two fundamentally different proprietary interests.

B. Terra Nullius and ‘Radical’ Tenure

The assumption, inherent in the notion of ‘enlarged’ terra nullius, that English common law could apply absolutely to the new colonies, because the land was vacant at the time of settlement, was clearly a racially discriminatory doctrine. The only reason the land was regarded as vacant was because indigenous occupants were not deemed civilised enough to have any legal identity conferred; hence the land was treated as if it were vacant. In his leading judgment, Brennan J spoke of the difficulty in continuing to accept such an ‘untruth’ within contemporary law:

It is one thing for our contemporary law to accept that the law of England, so far as applicable, became the laws of New South Wales and of the other Australian colonies. It is another thing for our contemporary law to accept that, when the common law of England became the common law of the several colonies, the theory which was advanced to support the introduction of the common law of England accords with our present knowledge and appreciation of the facts.[146]

All previous judicial decisions had assumed that the application of English law to the colonies, in particular the colonial expression of feudal tenure, was valid and in accordance with British constitutional principles. In Milirrpum, Blackburn J concluded that under a valid and enforceable tenure regime there was no doctrinal foundation for the recognition of native title rights and that the ‘doctrine of communal native title does not form and never has formed, part of the law of any part of Australia’.[147] His Honour ignored the physical reality of indigenous occupants at the time of settlement, noting that a mere ‘factual re-evaluation’ could not have any significant impact upon the law.

The conclusions of Blackburn J were influenced significantly by Canadian authority. Blackburn J expressly referred to the decision of the British Columbia Court of Appeal in Calder v A-G (British Columbia).[148] In that case the court held that any property right that might have existed in the Nishga Indian tribe had been extinguished by properly constituted authorities in the exercise of their sovereign powers. Judson J concluded that, following assumed tenure principles, ‘the sovereign authority elected to exercise complete dominion over the lands in question, adverse to any right of occupancy which the Nishga tribe might have had’.[149]

Following the conclusions of Judson J in Calder, Blackburn J in Milirrpum suggested that the failure of colonial law-makers to make any mention of indigenous title was indicative of an implied legislative objective to extinguish any such title.[150] There is, of course, an inherent circularity to this logic: the reason indigenous occupants were not mentioned had more to do with the political and cultural perspectives of indigenous inhabitants at the time, rather than any implied legislative intention, and it suited the colonial government to ignore indigenous inhabitants and quietly assume sovereignty tenure.[151]

It was not until the Mabo decision that the High Court actually decided to question the authority and relevance of the assumed truths underlying sovereignty tenure. In addressing the validity of enlarged terra nullius as the foundation for the settlement of Australia, Deane and Gaudron JJ made the following comments:

Inevitably, one is compelled to acknowledge the role played, in the dispossession and oppression of the Aboriginals by the two propositions that the territory of New South Wales was, in 1788, terra nullius in the sense of unoccupied or uninhabited for legal purposes and that full legal and beneficial ownership of all the lands of the Colony vested in the Crown, unaffected by any claims of the Aboriginal inhabitants. Those propositions provided a legal basis for and justification of the dispossession. They constituted the legal context of the acts done to enforce it and, while accepted, rendered unlawful acts done by the Aboriginal inhabitants to protect traditional occupation or use.[152]

Terra nullius provided the ‘legal context’ for the settlement of Australia because it justified the application of British common law in its entirety. Brennan J noted that the indigenous inhabitants of Australia had neither ceded their lands to the Crown nor had them taken as a result of an overt conquest; the indigenous inhabitants had lost their land because the common law itself took the land — without conferring any right to compensation — thereby removing from the inhabitants the ‘religious, cultural and economic sustenance’ which their lands had given them.[153] Indigenous inhabitants were deprived of their land because of a blatantly discriminatory assumption that they were barbarous, and without a civilised legal system or polity, as their culture did not sufficiently resemble what England deemed to constitute a ‘civilisation’.[154]

Brennan J felt that the time had come to reject such discriminatory and offensive assumptions, and made the following comments:

It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands.[155]

Brennan J rejected enlarged terra nullius as a proper foundation for Australian land law, describing it as a theory which depended upon a ‘discriminatory denigration of indigenous inhabitants, their social organization and customs’.[156]

Deane and Gaudron JJ agreed with Brennan J and found that the doctrine of terra nullius had to be rejected if a common law native title was to be accepted.[157] Toohey J also agreed with Brennan J, concluding that terra nullius should be rejected, along with any idea that international law precluded the recognition of native title because that land was regarded as terra nullius.[158]

In rejecting enlarged terra nullius, the High Court removed the prevailing orthodoxy underlying the legal settlement of Australia. The court justified its abolition on the grounds that it accorded with the expectations of international human rights and reflected the ‘contemporary values of the Australian people’.[159]

The difficulty with the Mabo determination is that enlarged terra nullius had no previous history as a validating legal principle for the settlement of an inhabited territory; it was a theory first advanced by the Privy Council in Re Southern Rhodesia where the law lords concluded:

the estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or legal ideas of civilized society. Such a bridge cannot be gulfed. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them.[160]

The Mabo High Court was misguided in its attempt to extrapolate an enlarged terra nullius principle from Re Southern Rhodesia when, on the facts, the case dealt with a conquered rather than a settled territory. The issue in Re Southern Rhodesia was not whether the indigenous occupants were so uncivilised to be deemed non-existent, but rather, whether their primitive status justified the perpetuation of indigenous law in accordance with the continuity principle.[161]

In light of this, it is arguable that the enlarged or extended terra nullius principle was a construct employed by the Mabo High Court to provide legal validation for a patently illegitimate application of established settlement principles.[162] Re Southern Rhodesia could never justify the assumption that indigenous occupants did not exist; there are no legal rationalisations for such a patent act of discrimination. The settlement of Australia and the adoption of sovereignty tenure occurred because of the endemic cultural discrimination associated with imperial expansion.[163] The terra nullius principles that the Mabo High Court raised were products of a discriminatory colonial attitude that had no formal doctrinal foundation.

Nevertheless, the Mabo High Court refused to characterise Australian settlement in this way. The legalisation of terra nullius provided the court with a tangible principle to validate a cumulative history of indigenous discrimination, while the subsequent rejection of this legalisation principle gave the decision an illusion of reform. This was mere illusion. The ultimate aim of the Mabo High Court was to condemn the discriminatory foundation for the reception of English land law into Australia whilst at the same time reinforcing the institutions upon which this discrimination was founded.[164]

The rejection by the Mabo High Court of enlarged terra nullius had little utility other than to illustrate a shift in judicial perspective; the High Court revealed its preparedness to accept the legal existence of indigenous inhabitants, thereby rebuking the ‘silent acceptance’ of constitutional assumptions that had characterised the judicial landscape for so long.[165] The Mabo High Court did not, however, reject the validity of the settlement principle, nor did it directly reject the assertion of sovereignty tenure. In this way, the rejection of enlarged terra nullius became a smoke screen for the re-feudalisation of Australian land law.[166]

On a practical level, however, the rejection of enlarged terra nullius had its advantages; it cleared the path for recognition of the factual and legal existence of indigenous occupants at the time of settlement. The reverberations of rejecting this ‘untruth’ were so significant that further legal fissures were inevitable. The rejection of the ‘legal context for settlement’ necessarily affected the entire property infrastructure, which was inevitable, as the whole system is an ‘interconnected series of assumptions’.[167]

The natural and inevitable consequence of rejecting enlarged terra nullius was not just recognition of indigenous occupants, but also acceptance of the validity of their prior possession and title. The legal and moral primacy of first possession as a basis for the recognition of land rights is well established in English land law.[168] The problem was how to validate and enforce these interests alongside the established common law and statutory tenures that had existed since settlement.

With the aim of reconciling these issues, the Mabo High Court concluded that upon settlement the Crown acquired a sovereignty of power which could not be challenged; however this ‘change in sovereignty did not necessarily extinguish native title to land’.[169] The court went on to reassess the assumption that the adoption of feudal tenure necessarily resulted in the Crown acquiring absolute plenum dominium to the exclusion of any indigenous title upon settlement.[170] Following the rejection of enlarged terra nullius, the court concluded that it was only the fallacy of equating sovereignty with absolute ownership that prevented the validation of indigenous native title. To protect the interests of indigenous land holders, it was, according to the Mabo High Court, quite appropriate to adopt a feudal regime where the Crown held a radical rather than an absolute title. In the words of Deane and Gaudron JJ:

the effect of an applicable assumption that the interest was respected and protected under the domestic law of the Colony would not be to preclude the vesting of radical title in the Crown. It would be to reduce, qualify or burden the proprietary estate in land which would otherwise have vested in the Crown to the extent which was necessary to recognise and protect the pre-existing native interest.[171]

The recognition by the Mabo High Court that the Crown held a radical rather than an absolute title over land — which could be burdened by native title — seemed to represent an appropriate compromise between tenure and native title. Radical title became the interposed link between the common law estates that issued from the Crown and the native title rights that encumbered the Crown. In the words of Brendan Edgeworth, ‘radical title operates as a linking concept between the constitutional or public law notion of sovereignty on the one hand, and the private law of proprietary rights on the other’.[172]

Radical title is the constitutional and political foundation for the enforcement of native title rights. Its presence ensures a non-homogenous proprietary culture that is directly antagonistic to the collective character of traditional feudal imagery, promoting a concordant proprietary culture.[173]

In this way, the adoption of radical title fundamentally changed the ongoing expression of sovereignty tenure within Australia. The replacement of absolute Crown ownership with radical Crown title created a new tenure articulation; sovereignty tenure was replaced with ‘radical tenure’.

Radical tenure, like sovereignty tenure, is also very different to the feudal version of tenure. The divergences between radical tenure and the feudal imagery are obvious: in Norman England, the Crown acquired absolute ownership over alienated land; in Australia, under a post-Mabo, ‘radical tenure’, the Crown acquired absolute ownership over all land, subject to enforceable native title rights. Feudal tenure worked well in Norman England because it did not have to deal with a fundamentally oppositional indigenous culture; it did not have to ‘accommodate feudal ideas of tenure with concepts based on a spiritual connection with a given country, comprising both land and sea’.[174] It did not have the responsibility of creating a land system accessible to two fundamentally oppositional cultures.

Radical tenure evolved as a response to the social and cultural changes that had occurred in Australia over time. The acceptance and endorsement of basic human rights was gradually perceived to be more imperative than the perpetuation of an artificial and highly discriminatory sovereignty tenure system.

There are, however, fundamental difficulties with the description of the post-Mabo land infrastructure as a tenure regime. It is arguable that the adoption of radical title has transformed the feudal version so extensively that it is no longer legitimate to define the system as tenurial. The tenure that Australia formally adopted at settlement retained a strong feudal narrative; whilst sovereignty tenure was a manifestation of this tenure, and there were distinct differences between fact and fiction in the development of Australian tenure, the feudal foundation endured. However, this has completely changed with the acceptance of radical title. The purpose of radical title is the recognition and enforcement of non-Eurocentric land titles. The feudal doctrine of tenure has, however, always been culturally insular; it is incapable of recognising the nature and validity of land interests that do not emanate from the Crown.

Nevertheless, the Mabo High Court was neither ready nor willing to abolish the enduring tenure categorisation. Brennan J insisted that, even with the adoption of radical title, it was a fundamental ‘skeleton’ principle that provided shape and consistency to Australian law, and the courts were:

not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle that gives the body of our law its shape and internal consistency.[175]

The ability of radical tenure to regulate a different proprietary landscape was not even examined by the courts. Deane and Gaudron JJ alluded to some potential problems, noting that because native title is an interest ‘of a kind unknown to English law’, its protection would require:

an adjustment either of the interest itself or of the common law: either a transformation of the interest into a kind known to the common law or a modification of the common law to accommodate the new kind of interest.[176]

Whilst the tenure categorisation continues, the necessary ‘adjustment’ has always involved the reduction of native title enforceability; within the radical tenure system, native title has effectively become an estranged misfit.[177] It is inevitable that within such an environment native title will wither. This process is already well under way. The only way to halt the progression and commence the process of creating a land system with multi-cultural perspectives is to fully and absolutely abolish the tenure paradigm. Retaining tenure as the basic substructure for all proprietary rights, when not all interests are informed by this paradigm, raises basic issues of structural fairness.

C. A Cultural Intersection: Native Title and Feudal Imagery

The insular perspective of feudal tenure makes it incapable of adapting to accommodate native title, because it has its origins in a fundamentally different cultural perspective. Never before has feudal tenure had to internalise a proprietary interest so profoundly different from established common law estates. Native title is an interest which the Mabo High Court recognised as existing where the indigenous claimants could prove that they held a specific, enduring relationship with the land claimed. Native title has ‘its origin in the traditional laws acknowledged and the customs observed by the indigenous people who possess the native title’.[178] Native title can be communal, group or individual in character; however, in practice, it is likely to be communal in form because the traditional laws and customs that prove the connection with the land will generally emanate from an indigenous community. As noted by Gummow J in Yanner v Eaton:

The term “native title” conveniently describes the “interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants”. The native title of a community of indigenous Australians is comprised of the collective rights, powers and other interests of that community, which may be exercised by particular sub-groups or individuals in accordance with that community’s traditional laws and customs.[179]

Native title is, where proven, enforceable against the Crown, however it has no parity with the land grants issued under the doctrine of tenure. It is, ‘neither an institution of the common law nor a form of common law tenure but it is recognised by the common law. There is, therefore, an intersection of traditional laws and customs with the common law.’[180] The common law definition of native title has now been encompassed under the legislative rubric of the Native Title Act 1993 (Cth) (hereinafter NTA) in s223(1) where the definition is expressly held to apply to both land and water.

The legislative definition specifically refers, in s223(1)(a), to the rights and interests possessed under the ‘traditional laws acknowledged, and the traditional customs observed’ by indigenous claimants. The meaning of ‘traditional’ was defined narrowly in Members of the Yorta Yorta Aboriginal Community v Victoria to refer to ‘the normative rules of the Aboriginal and Torres Strait Islander societies that existed before the assertion of sovereignty by the British Crown. It is only these normative rules that are “traditional” laws and customs’.[181] Hence, the only native title rights which are protected by the common law are those which are held to have survived the acquisition of sovereignty by the Crown and which come within the scope of s223(1) of the NTA.[182]

It is clear that whilst native title has been recognised and defined according to common law and statutory principles, it is a creature, which has evolved from indigenous custom; this is what renders it distinctive or, sui generis.[183] Whilst one of the aims of the Mabo High Court was to promote equality between native title and land tenures and to ‘fully recognise and respect’ indigenous people’s rights, this is fundamentally impossible within a tenure regime.[184]

In the first place, native title exists as an encumbrance over the radical title of the Crown; native title will only burden the sovereignty of the Crown where a continuing relationship with the land can be proven and where the Crown has not exercised its power inconsistently. In this sense, the character of native title as an encumbrance over Crown title makes it much more vulnerable than a common law estate which is not amenable to such extinguishment. Even where proven, native title may be destroyed where the Crown, pursuant to the sovereign powers it acquired upon settlement, issues a grant that is inconsistent with native title rights. The rationale underlying this amenability to ‘extinguishment’ is compromise. The Mabo High Court explained that even though native title survived the acquisition of radical title by the Crown, it was amenable to extinguishment because of the sovereign power that the Crown acquired at settlement.[185]

This has effectively come to be recognised as the ‘pragmatic compromise’ between indigenous and non-indigenous inhabitants, deemed necessary in order to prevent the destruction of 200 years of established land grants.[186]

It is this compromise that has resulted in a gradual erosion of native title rights since the decision of the Mabo High Court, and it is clear that this structural inequality is a direct product of a radical tenure which perpetuates the feudal imagery that all land interests relate to the Crown. The continuation of this fiction becomes even more questionable when it is proven to perpetuate systemic and unjustifiable inequality. There would be no need for a ‘compromise’ if feudal tenure were abolished and each land holder became the absolute ‘allodial’ owner of their land, subject to the rules and regulations implemented by the state. It is unacceptable to justify the treatment of native title as an extinguishable encumbrance simply because the tenure regime is perceived to be inviolate. The need for cultural equality far outweighs any homage Australia might have to a feudal fiction that was adopted with the primary motivation of acquiring power and control over land first occupied by indigenous inhabitants.

Indeed, the recognition of native title has highlighted the differences between the dynamic tenure relevant to medieval times and the static version that continues to endure within Australian land law. As noted by the court in Commonwealth of Australia v Yarmirr:

At least after the Norman conquest, English law did not have to solve the many special problems now presented to Australia’s legal system by the intersection of an established written legal system of immigrant settlers and their successors, on the one hand, and the unwritten laws and customs of the pre-existing indigenous peoples on the other. English law did not have to attempt to reconcile notions of individual and communal rights. It did not have to accommodate feudal ideas of tenure with concepts based on a spiritual connection with a given country, comprising both land and sea. It did not have to adjust the universal conception of a single legal sovereignty to a new legal idea affording special legal recognition to the legal claims of indigenous peoples both because their claims relate to rights and interests that preceded settlement and because their recognition is essential to reverse previously uncompensated dispossession.[187]

The emerging difficulties that native title faces within a tenure regime have been made abundantly clear in the cases. In Wik, native title was only able to survive the issuing of pastoral legislative leases because those leases were interpreted not to have conferred exclusive possession, and therefore were not regarded as inconsistent with the continued existence of native title.[188] The validity of native title rights over thousands of acres of land most likely to be amenable to native title claims was, therefore, dependent upon a detailed interpretation of the intention of the drafters of the Crown leases. Whilst the Wik High Court felt that there was a strong presumption that a statute was not intended to extinguish native title, it is very clear that this is a matter of interpretation for each case, and where the Crown has issued a grant which is ‘wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency’.[189]

The result of the Wik decision was that at common law the grant of a pastoral lease does not necessarily extinguish native title. However, leases granted after the commencement of the Radical Discrimination Act 1975 (Cth) and before the commencement of the NTA, which might have been contrary to the discrimination legislation, may now be validated by the NTA.[190] The Wik decision highlights the precarious status of native title and the difficulty of superimposing a proprietary right from indigenous culture into a highly eurocentric tenure system.

In Yorta the High Court emphasised the clear need for native title claimants to prove ‘continuity of acknowledgement and observance of traditions and customs with respect to the claimed land’.[191] The court noted that the only traditions which would satisfy the test were those that had survived the acquisition of sovereignty and continued to the present day. In interpreting the scope of s223(1) of the NTA, the High Court in Yorta felt that unless the traditions have continued ‘substantially since sovereignty’ they could no longer be described as traditional, and proof of that continuation must be in accordance with the ordinary rules of evidence.[192] This decision highlights the impact that the tenure regime and its associated sovereignty presumptions have had upon the evolution of native title. A tradition capable of proving a connection with the land must not only be proven in accordance with non-indigenous evidential standards, it must be proven to have existed prior to the date when the feudal imagery commenced.

This rigorous continuity requirement is a direct consequence of the tenure infrastructure; the tradition must be proven to pre-date sovereignty as this would justify its enforcement against an all-powerful sovereign. Any traditions not pre-dating sovereignty could not be enforced because they would impugn the radical title of the Crown, and therefore undermine the feudal presumptions. This has effectively created what Richard Bartlett describes as a ‘museum mentality’; it ‘entails the perpetuation of the colonial mentality of Australia’s past now resurrected in a patronising and paternalistic manner so as to disempower indigenous people and deny them rights’.[193]

This deep-rooted tenure ideology pervades the entire property framework; it associates land ownership with possession, control and regulation by a higher authority and is, by its very nature, adversative to alternative property perspectives. In Western Australia v Ward the majority of the High Court concluded that the rights and interests protected under s223(1) of the NTA were akin to a ‘bundle of rights’ and that each traditional law or custom may raise a range of rights, each associated with the particular tradition or custom.[194] The High Court noted, however, that the NTA would only protect traditions and customs capable of being translated into common law rights and interests. This decision has imposed significant strictures upon native title and highlights the chasm between the rights-based perspective of Westernised property interests and the cultural framework of indigenous tradition. Identifying customs and traditions in terms of a rights-based analysis is particularly problematic for Australian aborigines given the fact that their relationship with the land is essentially spiritual in nature. The Ward High Court noted this difficulty but felt that it was subsumed by the requirements of the NTA:

The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests that are considered apart from the duties and obligations which go with them.[195]

The problem, however, is not simply that the NTA requires a rights based ‘ordering of affairs’; it lies in the fact that the rights projected within a tenurial system, which the NTA accommodates, are defined from a specific Eurocentric perspective. Customary native title rights are divergent to the ‘feudal imagery of English constitutional theory’; consequently, the tenure system will never be able to provide the framework for structural equality between indigenous and non-indigenous property interests.[196]

One of the entrenched characteristics of Australian feudal tenure is proprietary parallelism; the feudal fiction was adopted by colonial law-makers with the aim of assuming complete sovereignty and control without regard to the interests of the indigenous occupants. This ingrained perspective is difficult to eradicate. The Eurocentric assumptions of tenure make it directly inconsistent with the evolution of a diverse property sub-structure and are regressive to the representative needs of democratic Australia.[197] The prospect of ‘radical tenure’ having the facility to suddenly accept and promote native title within Australian jurisprudence is piling ‘fiction upon fiction’. The High Court’s insistence in Mabo that feudal tenure continue to function as the foundation for Australian land law is retrograde; the prolongation of the tenure system has impeded the development of a modus operandi capable of protecting the collective rights of semi-autonomous minorities within Australia.[198] Native title rights will always be unequal within a tenure system. The feudal narrative that pervades all expressions of tenure impedes the capacity of the courts to adopt a more individualistic approach, perpetuating native title as an ‘artificially defined jural right’.[199] Within such an infrastructure native title is perceived as a ‘burden’, defined by its association with the Crown rather than its unique cultural identity.

6. Conclusion

The feudal doctrine of tenure was only truly functional during Norman England where it operated as an efficient and representative social dynamic. When this feudal expression was adopted by Australia, it had already become moribund within England and had no specific historical or social relevance to the circumstances of the colony. The primary motivation underlying its endorsement was the belief that it would legitimate the assumption of absolute Crown ownership. As the Australian land system evolved, feudal tenure was perceived to have become an entrenched foundation for the entire hierarchy of common law estates. Paradoxically, the acceleration of statutory grants, a form completely foreign to the classical feudal expression, occurred against a background of increasing judicial deference to the tenure regime. Feudal tenure became an institutionalised vestige of a past world.[200]

The introduction of native title rights has, however, fundamentally altered Australian land culture. In accepting native title as a valid and enforceable property interest, Australian land law has now embraced a pluralist property perspective. Within such an environment, it is no longer legitimate or justifiable to perpetuate a feudal fiction intrinsically inconsistent with native title perspectives. The longevity of feudal tenure must not inure it against the demands of social progression.

The difficulties associated with the implementation of native title rights within an insular and unaccommodating tenure framework are gradually destroying the spirit of native title. The literal application of a feudal fiction has always been a strange foundation for Australian land law and, in the words of Jeremy Webber, ‘is all the more inappropriate now, given the discriminatory impetus underlying the denial of indigenous title’.[201]

The abolition of feudal tenure and its replacement with an allodial system, where the state holds no presumptive ownership and individual land owners retain proprietary independence, will encourage a greater sense of cultural neutrality and create a system better able to cope with the demands of a new property ideology.[202] Until the courts address this issue and challenge the presumed status of feudal tenure, native title rights, derived from a transcendent connection between indigenous inhabitants and the land, will remain imprisoned within an irreconcilable land culture. The moral judgements of the past will continue to operate and define the present.[203]


[*] * Senior Lecturer in Law, Deakin University. This article is the basis of my forthcoming doctoral thesis. My thanks to the wonderful assistance of Professor Michael Bryan, Associate Professor Maureen Tehan and all the participants in the Faculty seminar at the University of Melbourne.

[1] Taken from the poem ‘To an English Friend in Africa’, An African Elegy (1992).

[2] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (hereafter Mabo).

[3] For a discussion of the relationship between the conceptual nature of property and its structural position see Kevin Gray, Elements of Land Law (1987); William Buckland & Arnold McNair, Roman Law and Common Law: A Comparison in Outline (2nd ed, 1952).

[4] See in particular the discussion by AR Buck, ‘Attorney–General v Brown and the Development of Property Law in Australia’ (1994) 2 APLJ 128 at 133 where the author notes that ‘paradoxically the feudal system had a greater force in New South Wales than even in England’.

[5] AR Buck, ‘Property, Aristocracy and the Reform of the Land Law in Early Nineteenth Century England’ (1995) 16 JLegHist 63 at 68 where the author discusses the nexus between political logic and the perpetuation of Imperial power in England; John Latham, ‘The Migration of the Common Law: Australia’ (1960) 76 LQR 54.

[6] For a particularly good discussion on the decline of the feudal dynamic see Francis Philbrick, ‘Changing Conceptions of Property in Law’ (1938) 86 U Pa LR 691 at 710; Theodore Plucknett, A Concise History of the Common Law (5th ed, 1956) at 506–520 for a general discussion on the impact that feudalism had upon the conception of property rights.

[7] Alfred Simpson, A History of the Land Law (2nd ed, 1986) at 2; William Searle Holdsworth, A History of English Law Vol II (4th ed, 1936) at 56–78.

[8] Law of Property Act 1922 (Imp), Pt V.

[9] See generally JH Thomas (ed), Systematic Arrangement of Lord Coke’s First Institute of the Laws of England (1986).

[10] Attorney–General v Brown (1847) 2 Legge 312; 2 SCR (NSW) App 30. This is outlined in Buck, above n4 at 132. For a general discussion on the meaning of free and common socage in Australia see Kenneth Roberts-Wray, Commonwealth and Colonial Law (1966).

[11] Attorney–General v Brown, id at 318.

[12] In Williams v Attorney–General for New South Wales [1913] HCA 33; (1913) 16 CLR 404 at 439 Isaacs J held that the feudal principle was certainly applicable to Australian land law; also the decision of Stephen CJ in Attorney–General v Brown, ibid, was endorsed by Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54.

[13] This was raised by Buck, above n4 at 133.

[14] Edward Jenks, A History of the Australasian Colonies (1896) at 59.

[15] (1971) 17 FLR 141 (hereafter Milirrpum). See also New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337 at 438–439.

[16] Mabo, above n2 at 35 (Brennan J).

[17] Brendan Edgeworth, Christopher Rossiter & Margaret Stone, Property Law: Cases and Materials (7th ed, 2004) at 194.

[18] William Blackstone, Commentaries on the Laws of England Vol 2 (9th ed, 1978) at 44; Samuel Thorne, ‘English Feudalism and Estates in Land’ [1959] Camb LJ 193; William Windeyer Lectures on Legal History (1957) at 42–45; Stroud Milson, The Legal Framework of English Feudalism (1976); Michael Stuckey, ‘Feudalism and Australian Land Law: “A Shadowy, Ghostlike Survival”?’ [1994] UTasLawRw 4; (1994) 13 U Tas LR 102 at 105; Archibald Paton Thornton, Doctrines of Imperialism (1982); Archibald Thornton, The Imperial Idea and Its Enemies: A Study in British Power (1959).

[19] Milson, id at 39; John Pocock, The Ancient Constitution and Feudal Law (1957) especially at 249.

[20] A description of tenure from Stuckey, above n18 at 105.

[21] Frederick Maitland, The Constitutional History of England (1955) at 143.

[22] Ibid.

[23] It has been suggested that English feudalism existed socially prior to the conquest in 1066 — see Frederic Maitland, Domesday Book and Beyond (1897) — the generally accepted premise is that English feudalism was a result of the Norman Conquest: Plucknett, above n6.

[24] Esprit des Lois, XXX, I; Voltaire, Fragments sur quelques revolutions dans l’Inde (ed Garnier, XXIX, p 91).

[25] See Henry Royston Loyn, Anglo-Saxon England and the Norman Conquest (2nd ed, 1991) at 180–185; Frederick Pollock & Frederic Maitland, The History of English Law Before the Time of Edward I Vol 1 (2nd ed, 1923) at 233.

[26] See Paul Vinogradoff, Villeinage in England: Essays in English Medieval History (1892) at 7–9; Frederic Maitland, The Forms of Action at Common Law (1969); Michael Evans & R Ian Jack, Sources of English Legal and Constitutional History (1984) and the discussion in Peter Butt, Land Law (4th ed, 2001) at 59–60.

[27] Michael Bennett, ‘The English Experience of Feudalism’ in Edmund Leach, SN Mukherjee & John Ward (eds), Feudalism: Comparative Studies (1985) at 133.

[28] See generally Marc Bloch, Feudal Society Vols 1 & 2 (1962); Christopher Brooke, Europe in the Central Middle Ages, 962–1154 (1974); Stroud Milson, The Historical Foundations of the Common Law (2nd ed, 1981); John Baker, An Introduction to English Legal History (2nd ed, 1979); Peter Goodrich, ‘Eating Law: Commons, Common Land, Common Law’ (1991) 12 J of Leg Hist 246.

[29] For a general outline on Anglo-Saxon social structure see Windeyer, above n18 at 1–29.

[30] See Simpson, above n7; Milson, above n18 at 45–50; JH Spencer, ‘The Freeholder and Feudalism Today’ (1978) 122 Solicitors Journal at 289.

[31] See Pollock & Maitland, above n25 at 233.

[32] See Frank Merry Stenton, The First Century of English Feudalism 1066–1166 (1932); Maurice Keen, A History of Medieval Europe (1967).

[33] Mabo, above n2 at 47–48 (Brennan J), 212 (Toohey J); Edgeworth, Rossiter & Stone, above n17 at 195.

[34] Keen, above n32 at 40–42.

[35] Id at 334.

[36]See Windeyer, above n18; Spencer, above n30.

[37] John Scriven, A Treatise on the Law of Copyholds (7th ed, 1896). Copyhold tenure was formally abolished on 1 January 1926 by The Law of Property Act 1922 (UK).

[38] Hammerton v Honey (1876) 24 WR 603 especially the judgment of Jessel MR; Egerton v Harding [1974] 3 All ER 691.

[39] Mabo, above n2 at 35.

[40] Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology: the Politics and Poetics of an Ethnographic Event (1999) at 26. See also generally Winfried Baumgart, Imperialism: The Idea and Reality of British and French Colonial Expansion, 1880-1914 (1982).

[41] See for example the Property Law Act 1974 (Qld) s20(1) which confirms that tenures granted by the Crown within Australia will be granted in free and common socage, without any surviving tenurial incidents or obligations.

[42] See Julian Boyd (ed), The Papers of Thomas Jefferson (1958) at 392 where Thomas Jefferson outlines these ideas in a letter to James Madison (6 Sept 1789).

[43] Bruce Kercher, An Unruly Child: A History of Law in Australia (1995) at 5–10; David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (1991); John Hirst, The Strange Birth of Colonial Democracy: New South Wales 1848-1884 (1988) at 20–21.

[44] (1998) 136 ALR 9 at 15.

[45] Note that this is the position under British Imperial constitutional law where it was open to Parliament to change the laws, but unless and until this occurred the lex loci of indigenous land tenure would not be disturbed or abrogated: see Campbell v Hall [1774] EngR 5; (1774) 1 Cowp 204; 98 ER 1045.

[46] In particular, it has been held that pre-contact indigenous laws and systems, where not expressly altered by legislation, should remain in effect and any new land tenure system must be capable of embracing indigenous occupation. See generally Brian Donovan, ‘Common Law Origins of Aboriginal Entitlements to Land’ (2003) 29 Manitoba LJ 298; Brian Donovan, ‘The Evolution of Common Law Aboriginal Title in Canada’ (2001) 35 UBC Law Rev 43. These assumptions are, however, founded upon the implied acceptance of indigenous occupation which was legally denied within Australia.

[47] Nicholas Thomas, Colonialism’s Culture: Anthropology, Travel and Government (1994); A Frost, ‘New South Wales as Terra Nullius: The British Denial of Aboriginal Land Rights’ in Susan Janson & Stuart Macintyre (eds), Through White Eyes (1990) at 65–76.

[48] Patrick Wolfe, ‘History and Imperialism: A Century of Theory, from Marx to Postcolonialism’ (1997) Am Hist Rev 102; Thornton, The Imperial Idea and Its Enemies, above n18.

[49] Note the discussion by Buck, above n4 where the author notes that the voracious acquisition of land in Australia was primarily undertaken for the development of pastoralism. See also Lee Godden, ‘Wik: Feudalism, Capitalism and the State: A Revision of Land Law in Australia?’ (1997) 5 APLJ 2, where the author notes that the emergence of pastoralism was evidence of the divergence between property as understood in England and in Australia.

[50] Alain Pottage, ‘Evidencing Ownership’ in Susan Bright & John Dewar (eds), Land Law: Themes and Perspectives (1998); Kercher, above n43; Stephen Roberts, A History of Australian Land Settlement (1788-1920) (1924).

[51] Robert Crundwell, Hilary Golder & Robert Wood, >From Parchments to Passwords: A History of the Land Titles Office of New South Wales (1995).

[52] See Thomas Fry, ‘Land Tenures in Australian Law’ (1946– 1947) 3 Res Judicatae 158; Pottage, above n50.

[53] See Randwick Corp v Rutledge, above n12 at 71 (Windeyer J).

[54] See the definition of waste lands in Australian Colonies, Sale of Waste Lands Act 1842 (Imp) 5 & 6 Vic, c36 and Enid Campbell, ‘Crown Land Grants: Form and Validity’ (1966) 40 ALJ 35.

[55] This issue is explored by Godden, above n49 at 38 where the author notes that ‘[f]eudal property concepts, while providing a convenient fiction for the establishment of the Crown’s radical title to land, were limited as “regulatory template” for state allocation of land use in the colonial era and beyond’.

[56] See generally Joseph Singer, ‘Re-Eading Property’ (1992) 26 New Eng LR 711; Morris Cohen ‘Property and Sovereignty’ (1927) 13 Cornell LQ 8; Stuckey, above n18.

[57] (1996) 187 CLR 1 (hereinafter Wik).

[58] For a discussion on the ‘bundle of rights’ theory see Wesley Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays (1st ed, 1923); Antony Honore, ‘Ownership’ in Anthony Guest (ed), Oxford Essays in Jurisprudence: A Collaborative Work (1961) at 107; James Penner, ‘The “Bundle of Rights” Picture of Property’ (1996) 43 UCLA LR 711; Lawrence Becker, Property Rights: Philosophic Foundations (1977); Jeremy Waldron, The Right to Private Property (1988). For a discussion on the bundle of rights theory as applied to native title see Godden, above n49 and Buck, above n4.

[59] Godden, above n49 at 179. See also Crawford Macpherson, ‘Capitalism and the Changing Concept of Property’ in Eugene Kamenka & Ronald Stanley Neale (eds), Feudalism, Capitalism and Beyond (1975); Paul Brand, The Making of the Common Law (1992) for a discussion on the evolving nature of common law property interests within a capitalist framework.

[60] For an excellent discussion on the relationship between land tenure and the pastoral economy in colonial Australia see generally Philip McMichael, Settlers and the Agrarian Question: Foundations of Capitalism in Colonial Australia (1984) at 167. See also Buck, above n4.

[61] Wik, above n57 at 112.

[62] Wik, above n57 at 141. See also Fry, above n52; Neal, above n43 at 258–269; Henry Reynolds, Frontier: Aborigines, Settlers and Land (1987) at 58–61; John Hookey, ‘Settlement and Sovereignty’ in Peter Hanks & Bryan Keon-Cohen (eds), Aborigines and the Law: Essays in Memory of Elizabeth Eggleston (1984) at 4–8.

[63] See Campbell, above n54; AC Millard & GW Millard, The Law of Real Property in New South Wales (1985) at 472–474.

[64] See Fry, above n52 at 165; Frederick Jordan in Re Hawkins [1948] NSWStRp 59; (1948) 49 SR (NSW) 114 at 118 where his Honour describes the Crown tenure legislation as a ‘jungle penetrable only by the initiate’. See also the discussion in Andrew Lang, The Law of Real Property (2nd ed, 1996) at 519 and Patricia Lane, ‘Native Title – The End of Property As We Know It?’ (2000) 8 APLJ 1 at 6–9.

[65] Millard on Real Property (NSW) (4th ed, 1930) at 474.

[66] Ibid.

[67] See Wik, above n57 at 94–95. See also Blackwood v London Chartered Bank of Australia [1874] UKLawRpPC 2; (1874) LR 5 PC 92 and Stewart v William [1914] HCA 43; (1914) 18 CLR 381 for judicial examination of the ability and scope of the colonial legislators in issuing statutory tenures.

[68] For a discussion on this see Crundwell, Golder & Wood, above n51.

[69] For a discussion on the form and character of Crown restrictions see generally, Millard & Millard, The Law of Real Property in New South Wales (1985); Kent McNeil, Common Law Aboriginal Title (1989); Brendan Edgeworth, ‘Tenure, Allodialism and Indigenous Rights at Common Law: English, United States and Australian Land Law Compared After Mabo v Queensland(1994) 23 Anglo-Am LR 397 at 409. See also the general discussion by John Devereux & Shaunnagh Dorsett, ‘Towards a Reconsideration of the Doctrines of Estates and Tenure’ (1996) 4 APLJ 30 and Stuckey, above n18.

[70] For a discussion on the form and character of Crown restrictions see generally Millard, above n65. For a discussion on the increasing difference between feudal and localised tenure see McNeil, ibid; Edgeworth, ibid. See also Devereux & Dorsett, ibid; Stuckey, above n18.

[71] Butt, above n26 at 67.

[72] Edgeworth, above n69.

[73] See the discussion by Stephen CJ in Attorney General v Brown, above n10 at 38–40 where his Honour discusses the nature of the Crown reservations.

[74] The absence of an interactive feudal relationship within Australian statutory tenures and their corresponding resemblance to allodial interests was alluded to by Gaudron J in Wik, above n57 at 187, who in examining the nature of pastoral leases noted that there was nothing to suggest that they had to conform precisely to the common law. Gummow J notes the underlying irony in the fact that the early Australian courts were rejecting allodial title whilst at the same time it was reemerging in other parts of the world via indigenous recognition of title. See also Simpson, above n7 at 261–262.

[75] James Kent, Commentaries on American Law Vol 3 (1828) at 412 and quoted in Wik, above n57 at 249 (Gummow J).

[76] Wik, above n57 at 280.

[77] Fry, above n52 at 159.

[78] Above n12 at 439.

[79] See Jenks, n14 at 59.

[80] Ibid.

[81] For a further discussion on the culture of constraint within colonial societies see generally ibid; Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (1983) at 438–459; and Edgeworth, above n69.

[82] Kercher, above n43 at 203.

[83] This is in stark contrast to the perception of American colonists who regarded the colony as the new world and a chance to start again. See especially Gordon Wood, ‘Thomas Jefferson, Equality, and the Creation of a Civil Society’ (1996) 64 Fordham LRev 2133 at 2139.

[84] See the discussion by Edgeworth, above n69.

[85] See Neal, above n43; Edgeworth, above n69 at 407, where he stated of early Australian settlers, ‘Far from wanting to take stock of the extent of the differences between the law as it applied locally and its original principles, colonial jurists on the contrary sought to emphasize their continuity and homology. They saw themselves as bearers of an ancient past rather than creators of a new present’.

[86] See Edgeworth, above n69; Rosemary Coombe, ‘The Properties of Culture and the Possession of Identity: Post Colonial Struggle and the Legal Imagination’ in Bruce Ziff & Pratima Rao (eds), Borrowed Power: Essays on Cultural Appropriation (1997) 74 at 84.

[87] See Macpherson, above n59; Wolfe, above n40 at 54–55; Lauriston Sharp, ‘Steel Axes for Stone Age Australians’ in Edward Spicer (ed), Human Problems in Technological Change (1952) at 69–81.

[88] See esp Buck, above n4 at 136.

[89] See generally Richard Morris, Studies in the History of American Law (2nd ed, 1959) at 69–125.

[90] See Gordon Wood, The Creation of the American Republic, 1776-1787 (1969) at 47–54; Gregory Alexander, ‘Time and Property in the American Republican Legal Culture’ (1991) 66 NYULR 273; Roscoe Pound, ‘The Development of American Law and its Deviation from English Law’ (1951) 67 LQR 49.

[91] Boyd, above n41 at 133 quoted in Alexander, id at 312–313.

[92] See generally Kent, above n75 at 412; Kavanaugh v Cohoes Power & Light Corp 187 NYS 216 (1921) at 236–237; the judgment of Gummow J in Wik, above n57.

[93] See generally Alexander, above n90 at 310–313.

[94] See in particular the judgment of Stephen CJ in Attorney-General v Brown, above n10 at 316 where his Honour notes that the lands of this colony ‘are, and ever have been, from the time of its first settlement in 1788, in the Crown’.

[95] For example, in Amodu Tijani v Secretary, Southern Nigeria [1921] UKPC 80; [1921] 2 AC 399, the Privy Council held that a system of native laws and land tenure did exist and could be given effect within a feudal regime. See also Donovan, above n46.

[96] See Brian Slattery, ‘Aboriginal Sovereignty and Imperial Claims’ (1991) 29 Osgoode Hall LJ 681; Jeremy Webber, ‘Relations of Force and Relations of Justice: The Emergence of a Normative Community between Colonists and Aboriginal Peoples’ (1995) 33 Osgoode Hall LJ 623; and more generally Gerry Simpson, ‘Mabo, International Law, Terra Nullius and the Stories of Settlement: An Unresolved Jurisprudence’ [1993] MelbULawRw 7; (1993) 19 MULR 195 at 207–209.

[97] For a discussion on the political motivation underlying the application of sovereignty assumptions to Canadian colonies see generally John Borrows, ‘Sovereignty’s Alchemy: An Analysis of Delgamuukw v British Columbia(1999) 37 Osgoode Hall LJ 537.

[98] See generally Holdsworth, above n7 at 199; Pollock & Maitland, above n25 at 9; Mabo, above n2 at 34–35 (Brennan J).

[99] Henry Reynolds, The Law of the Land (1987) at 45.

[100] Note the discussion on this by Donovan, above n46 and see also Kercher, above n43 at 36.

[101] See Carol Rose, ‘Possession as the Origin of Property’ (1985) 52 U Chi LR 73; Hugo Grotius, On the Law of War and Peace (1925); John Locke, Two Treatises of Government (1st ed, 1924); Blackstone, above n18 at 8–9; Asher v Whitlock (1865) 1 LR QB 1; Perry v Clissold [1906] UKLawRpAC 53; [1907] AC 73.

[102] The High Court in Mabo describes this ‘choice’ of the colonists as an application of enlarged terra nullius but this is probably a retrospective legal validation of a racially discriminatory assumption. See Mabo, above n2 at 32. See also Patricia Lane, ‘Nationhood and Sovereignty in Australia’ (1999) 73 ALJ 120; Mark Brabazon, ‘Mabo, the Constitution and the Republic’ (1994) 11 Aust Bar Rev 229; and see generally Kercher, above n43.

[103] Rosemary Hunter, Richard Ingleby & Richard Johnstone (eds), Thinking About Law: Perspectives on the History, Philosophy and Sociology of Law (1995) at 10–16; Alex Castles, ‘The Reception and Status of English law in Australia’ [1963] AdelLawRw 1; (1963) 2 Adel LR 1; Millard & Millard, above n63; Mark Lindley, The Acquisition and Government of Backward Territory in International Law (1969).

[104] See generally Simpson, above n96; Andrew Lokan, ‘>From Recognition to Reconciliation: The Functions of Aboriginal Rights Law’ (1996) Mon LR 65.

[105] Certainly the sovereignty motivations of colonial jurists were consistently invoked and reinforced without reference to indigenous occupation or identity. See generally Simpson, above n96.

[106] Note in John Salmond, Jurisprudence (6th ed, 1920) at 495: in accordance with the feudal law, the ‘distinction between territorial sovereignty and ownership was to some extent obscured’ because of the conflation of the imperium and the dominium.

[107] See Edgeworth, above n69 at 412.

[108] Above n10 at 318.

[109] See generally Simpson, above n7; Robert Chambers, An Introduction to Property Law in Australia (2001). Note also that with the adoption of radical title by the High Court in the Mabo decision, it is possible to argue that this view better accords with the essential premise of feudal tenure.

[110] See in particular the discussion on allodial landholding in feudal England by Goodrich, above n28; Buck, above n5.

[111] See the discussion by Shaunnagh Dorsett, ‘Since Time Immemorial: A Story of Common Law Jurisdiction, Native Title and the Case of Tanistry’ [2002] MelbULawRw 3; (2002) 26 MULR 32 at 46–50.

[112] William Blackstone noted that a change in sovereignty is ‘not presumed as meant to disturb rights of private owners’, above n18 at 8–9.

[113] Above n57 at 106.

[114]This process is discussed by Nicholas Blomley in Law, Space and the Geographies of Power (1994) at 73 where he notes that the common law has become ‘increasingly territorial rather than predominantly local’ and that this shift is ‘associated with the beginning of crucial changes in the spaces of social, economic and political life, entailing a modernist displacement of the locus of social identity’.

[115] (1999) 169 CLR 49 at 63.

[116] See Simpson, above n96; Kent McNeil, ‘A Question of Title: Has the Common Law Been Misapplied to Dispossess the Aboriginals?’ [1990] MonashULawRw 5; (1990) 16 Mon LR 91 where he notes: ‘The assumption of the Crown and courts of English law that the Aboriginals were devoid of sovereignty is rooted in a European view of the World which probably would have been incomprehensible to the Aboriginals’. See also Robert Lumb, ‘Aboriginal Land Rights: Judicial Approaches in Perspective’ (1988) 6 ALJ 273.

[117] For a more general discussion on the nature of legal fictions and dualism in the law see: Alf Ross, Towards a Realistic Jurisprudence: A Criticism of Dualism in Law (1946) at 202; Morton Horwitz, The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy (1992) at 169–192.

[118] McNeil, above n116. See also Blackstone, above n18 at 51.

[119] The Crown’s discretionary power to annex colonies and construct a new social system is derived from a broad prerogative power. The acquisition of sovereignty is an act of state and its validity cannot be questioned in the courts: Cook v Sprigg [1899] UKLawRpAC 44; [1899] AC 572 at 578. See also McNeil, above n69 at 181–179.

[120] Above n10 at 316. See also Doe d Wilson v Terry (1849) 1 Legge 505 at 508–509 where Stephen CJ specifically described the adaptation of feudal tenure as a ‘fiction’ and occupancy title as a ‘reality’.

[121] DC Hodgson, ‘Aboriginal Australians and the World Court I — Sovereignty by Conquest’ [1985] NZLJ 85; McNeil, above n116; Hookey, above n62 at 1–18.

[122] See McNeil, above n69.

[123]I n Attorney-General v Brown, above n10, Stephen CJ noted that the Crown acquires title to the territory and the waste lands within as a consequence of the ‘possession’ of British subjects in the name of the Sovereign — the occupancy of the Crown being described by his Honour as ‘no fiction’. At common law, once the Crown is in possession of land it cannot be dispossessed: Commonwealth of Australia v Anderson [1960] HCA 85; (1960) 105 CLR 303. Kent McNeil concludes that if title has already been acquired by occupancy, it is superfluous to adapt the feudal tenure fiction. See McNeil, above n116 at 98; McNeil, above n69 at 161–179.

[124] See generally McNeil, above n116.

[125] Above n10.

[126] Above n12 at 439. These views were approved in New South Wales v Commonwealth of Australia, above n15 at 438–439 (Stephen J). See also McNeil, above n116 at 99–100.

[127]I bid.

[128] Above n15 at 245.

[129] See especially the argument by Pollock & Maitland, above n25 at 236 where the authors suggest that the notion of universal tenure was perhaps only possible in a conquered country. See also Holdsworth, above n7 at 199 where it is suggested that the doctrine of tenure may be a ‘purely English phenomenon’. See also the judgment of Brennan J in Mabo, above n2 at 47 where his Honour notes that ‘[i]t is arguable that universality of tenure is a rule depending on English history and that the rule is not reasonably applicable to the Australian colonies’.

[130] Blackstone, above n18 at 79.

[131] Roberts-Wray, above n10 at 626.

[132] Wik, above n57 at 196 (Gaudron J).

[133] [1889] UKLawRpAC 7; (1889) 14 App Cas 286 at 292 (Lord Watson).

[134] For an excellent discussion on the misuse of sovereignty conceptions in international and domestic law see James Brierly, ‘The Basis of Obligation in International Law’, course at the Hague Academy, 1928, in Hersch Lauterpacht (ed), The Basis of Obligation and Other Papers (1958) at 19. See also James Brierly, ‘The Sovereign State Today’ in Hersch Lauterpacht (ed), The Basis of Obligation and Other Papers (1958) at 348.

[135] Wik, above n57 at 105.

[136] Henry Reynolds, The Law of the Land (1987) at 44.

[137] Mabo, above n2 at 187.

[138] McNeil, above n116. See also Lumb, above n116; Attorney-General v Lord Hotham [1823] EngR 594; (1823) Turn & Russ 209 at 218 where the court noted: ‘Very high judges have said they would presume anything in favour of a long enjoyment and uninterrupted possession’.

[139] See for example Lansen v Olney, above n115 where the Federal Court noted that the practical effect tenure and the vesting of ‘radical title’ in the Crown was merely to enable the English system of private ownership of estates held of the Crown to be observed in the colony, and that in the end, ‘the concept of radical title has little if any relevance to the grant of interests in land in post-federation Australia’, as it was invoked to support native title. Under this approach, tenure and radical title are presented as artificial constructs, with little practical relevance, utilised purely in order to achieve a desired result.

[140] See in particular the discussion in A Davidson & A Wells, The Land, the Law and the State: Colonial Australia 1788-1890 (1986) at 83–85.

[141] Lansen v Olney, above n115 at 57–58.

[142] See for example the comments of Brennan J in Mabo, above n2 at 36 where his Honour concluded that ‘[l]and in Australia which has been granted by the Crown is held on a Tenure of some kind and the title acquired under the accepted land law cannot be disturbed’.

[143] See Davidson & Wells, above n140 at 91–93.

[144] Wik, above n57 at 59–60.

[145] See the outline of radical title by Nicolette Rogers in ‘The Emerging Concept of “Radical Title” in Australia: Implications for Environmental Management’ (1995) 12 EPLJ 183 at 185.

[146] Mabo, above n2 at 26.

[147] Above n15 at 244, 263.

[148] (1971) 13 DLR (3d) 64 (hereinafter Calder).

[149] Id at 244.

[150] Milirrpum, above n15 at 256–257.

[151] See especially Davidson & Wells, above n140.

[152] See Mabo, above n2 at 82.

[153] Id at 15.

[154] In Mabo, above n2 at 23, Brennan J refers to the decision of Advocate-General of Bengal v Ranee Surnomoye Dossee (1863) 2 Moo NS 22; [1863] EngR 761; 15 ER 811 as an example of enlarged terra nullius. Lord Kingsdown at 824 noted that ‘where Englishmen establish themselves in an uninhabited or barbarous country, they carry with them not only the laws, but the sovereignty of their own State; and those who live amongst them and become members of their community become also partakers of, and subject to the same laws’. See also the discussion by Lord Watson in Cooper v Stuart, above n133.

[155] Mabo, above n2 at 30 (Brennan J), 100–101 (Deane & Gaudron JJ).

[156] Id at 27.

[157] Id at 82–83.

[158] Id at 142.

[159] For a detailed overview of international human rights in this respect see Selected Decisions of the Human Rights Committee under the Optional Protocal Vol 2 at 23 and the International Court of Justice in its Advisory Opinion on Western Sahara [1975] 1 ICJR 12. See also the guarantee of equality endorsed, for example, in the Canadian Charter of Rights and Freedoms s15 and the Canadian Human Rights Act, RS 1985 c H-6.

[160] [1919] AC 210 at 233.

[161] This point is raised by Richard Bartlett, Native Title in Australia (2000) at 24–25 where the author specifically notes that the emphasis Brennan J gave to Re Southern Rhodesia was simply ‘not a correct statement of the common law’. See generally Simpson, above n96; David Ritter, ‘The Rejection of Terra Nullius in Mabo: A Critical Analysis’ [1996] SydLawRw 1; (1996) 18 Syd LR 5 and Michael Asch, ‘From Terra Nullius to Affirmation: Reconciling Aboriginal Rights with the Canadian Constitution(2002) Can J L & Society 23.

[162] See generally Simpson, above n96.

[163] This issue is discussed in Richard Bartlett, ‘Aboriginal Land Claims at Common Law’ (1983) 15 UWALR 293. See also Mark Walters, ‘British Imperial Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v British Columbia(1992) 17 Queens LJ 350.

[164] For a general discussion on the constitutional rationalisations of the Mabo decision, see Brabazon, above n102.

[165] For a discussion on the shift in judicial attitudes displayed in the Mabo decision see generally Nonie Sharp, ‘No Ordinary Case: Reflections Upon Mabo (No 2) [1993] SydLawRw 11; (1993) 15 Syd LR 143 at 151–153; Robin O’Hair, ‘Mabo and Land Rights: Searching for a Golden Thread’ in Margaret Stephenson & Suri Ratnapala (eds), Mabo: A Judicial Revolution (1993) at 63.

[166] This idea is alluded to by Godden, above n49.

[167] See John Sanders, ‘Justice and the Initial Acquisition of Property’ (1987) 10 Harv J L & Pub Pol’y 367 at 372–373.

[168] See Locke, above n101; Grotius, above n101; Lokan, above n104.

[169] Mabo, above n2 at 41 (Brennan J), 61 (Deane & Gaudron JJ) and 143 (Toohey J).

[170] Id at 51 (Brennan J), 58 (Deane & Gaudron JJ).

[171] Id at 64–65.

[172] Above n69 at 415.

[173] See especially the discussion in Samuel Thorne, ‘English Feudalism and Estates in Land’ [1959] CLJ 193.

[174] Commonwealth v Yarmirr (2001) 208 CLR 1 (hereinafter Yarmirr).

[175] Mabo, above n2 at 16.

[176] Id at 65.

[177] See generally the discussion by Stewart Motha, ‘Encountering the Epistemic Limit of the Recognition of “Difference”’ (1998) 7 GLR 79; Jeremy Webber, ‘The Jurisprudence of Regret: The Search for Standards of Justice in Mabo’ [1995] SydLawRw 1; (1995) 17 Syd LR 5.

[178] Fejo v Northern Territory [1998] HCA 58; (1998) 195 CLR 96 at 128.

[179] [1999] HCA 53; (1999) 201 CLR 351 at 383, quoting Mabo, above n2 at 57.

[180] Yanner v Eaton, id at 128.

[181] [2002] HCA 58; (2002) 214 CLR 422 (hereafter Yorta).

[182] See also Yarmirr, above n174 at [3] (Gleeson CJ, Gaudron, Gummow & Hayne JJ).

[183] Ibid; Western Australia v Ward (2002) 213 CLR 1.

[184] Mabo, above n2 at 56 (Brennan J), 82 (Deane & Gaudron JJ).

[185] Id at 69–70 (Brennan J).

[186] See Kristin Howden, ‘The Common Law Doctrine of Extinguishment — More than a Pragmatic Compromise’ (2000) 8 APLJ 9; Richard Bartlett, ‘Mabo: Another Triumph for the Common Law’ [1993] SydLawRw 14; (1993) 15 Syd LR 178.

[187] Above n174 at 133.

[188] Wik, above n57.

[189] Mabo, above n2 at 69 (Brennan J).

[190] The NTA validates certain classes of interests. For example, Category A interests, which include by the terms of s229(3) pastoral leases, will completely extinguish native title rights. See also the decision of the High Court in Wilson v Anderson (2002) 213 CLR 401 where the High Court held that the pastoral lease was of a different character to that in Wik and, as a lease in perpetuity, was effectively a substitute for the determinable fee simple which was directly inconsistent with native title claims.

[191] Yorta, above n181 at [31].

[192] d at [49]-[56] and [86]-[88] (Gleeson CJ, Gummow & Hayne JJ). Note also that s82 of the NTA now provides for the ordinary rules of evidence presumptively to apply.

[193] See especially Richard Bartlett, ‘Humpies not Houses or the Denial of Native Title: A Comparative Assessment of Australia’s Museum Mentality’ (2003) 10 APLJ 12.

[194] Western Australia v Ward, above n183 at 40.

[195] Id at [14].

[196] Edgeworth, above n69 at 413. See also McNeil, above n69 at 84–85.

[197] For an excellent discussion on common law and customary law see Brian Slattery, ‘Rights, Communities and Tradition’ (1991) 41 U of T LJ 447; Vine Delaria & Clifford Lytle, The Nations Within: The Past and Future of American Indian Sovereignty (1984).

[198] See Joseph Magnet, ‘Collective Rights, Cultural Autonomy and the Canadian State’ (1986) 32 McGill LJ 170 at 172; Michael Asch & Patrick Macklem, ‘Aboriginal Rights and Canadian Sovereignty: An Essay on R v Sparrow(1991) 29 Alta L Rev 498.

[199] Yanner v Eaton, above n179.

[200] See Stuckey, above n18; Thomas Watkin, ‘Feudal Theory, Social Needs and the Rise of the Heritable Fee’ (1979) 10 Cambrian LR 39.

[201] Webber, above n177.

[202] Note the general comments of John Devereux and Shaunnagh Dorsett, above n69: ‘While the doctrine of tenure is often thought to underpin our system of landholding, a move to allodialism would not fracture our land law. In many ways, it would better reflect its true nature’.

[203] See esp Gerald Postema, ‘On the Moral Presence of Our Past’ (1991) 36 McGill LJ 1153.

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