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Aboriginal Customary Law: A Source of Common Law Title to Land

By: Ulla Secher
Media of Aboriginal Customary Law: A Source of Common Law Title to Land
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Published: 01-12-2014
Format: PDF eBook (?)
Edition: 1st
Extent: 534
ISBN: 9781782253761
Imprint: Hart Publishing
RRP: £108.00
Online price : £97.20
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About Aboriginal Customary Law: A Source of Common Law Title to Land

Described as 'ground-breaking' in Kent McNeil's Foreword, this book develops an alternative approach to conventional Aboriginal title doctrine. It explains that aboriginal customary law can be a source of common law title to land in former British colonies, whether they were acquired by settlement or by conquest or cession from another colonising power. The doctrine of Common Law Aboriginal Customary Title provides a coherent approach to the source, content, proof and protection of Aboriginal land rights which overcomes problems arising from the law as currently understood and leads to more just results. The doctrine's applicability in Australia, Canada and South Africa is specifically demonstrated. While the jurisprudential underpinnings for the doctrine are consistent with fundamental common law principles, the author explains that the Australian High Court's decision in Mabo provides a broader basis for the doctrine: a broader basis which is consistent with a re-evaluation of case-law from former British colonies in Africa, as well as from the United States, New Zealand and Canada. In this context, the book proffers a reconceptualisation of the Crown's title to land in former colonies and a reassessment of conventional doctrines, including the doctrine of tenure and the doctrine of continuity. 'With rare exceptions ... the existing literature does not probe as deeply or question fundamental assumptions as thoroughly as Dr Secher does in her research. She goes to the root of the conceptual problems around the legal nature of Indigenous land rights and their vulnerability to extinguishment in the former colonial empire of the Crown. This book is a formidable contribution that I expect will be influential in shifting legal thinking on Indigenous land rights in progressive new directions.' From the Foreword by Professor Kent McNeil (to read the Foreword please click on the 'sample chapter' link).

Table Of Contents

Introduction
Part I: Australian Land Law and the Meaning of Radical Title Pre-Mabo
Chapter One: The Origin and Application of the Doctrine of Absolute Crown Ownership in Australia: The Common Law 1788–1992
I The Feudal Basis of Land Law in England
II The Reception of Land Law into the Australian Colonies
III Conclusion
Chapter Two: The Meaning of Radical Title Pre-Mabo
I The Meaning of Radical Title: The Leading Privy Council Authorities (Re)Examined
II International v Municipal Law: American Authority
III New Zealand Authority
IV Conclusion
Part II: The Doctrine of Tenure and the Juridical Consequences of the Colonial Law Classification of an 'Inhabited' Colony as 'Settled' Re-examined Post-Mabo
Chapter Three: The Doctrine of Tenure and the Common Law Consequences of the Classification of an 'Inhabited' Colony as 'Settled' Post-Mabo: Emergence of the Doctrine of Tenure ad Veritatem and the Doctrine of Continuity Pro-Tempore
I Radical Title as the Postulate of the Doctrine of Tenure ad Veritatem
II The Reception of Land Law into the Australian Colonies Revisited
III Post-Mabo Developments
IV Conclusion
Part III: The Meaning of Radical Title in Post-Mabo Australian Jurisprudence
Chapter Four: Radical Title and Unalienated Land Post-Mabo
I Automatic Expansion of Radical Title in Respect of Original Unalienated Land: Brennan J's Reliance on the 'No Other Proprietor' Principle (Radical Title as a Concomitant of Sovereignty)
II Automatic Expansion of Radical Title in Respect of Currently Unalienated Land: Brennan J's 'Reversion Expectant' Argument (Radical Title as Both the Postulate of the Doctrine of Tenure and a Concomitant of Sovereignty)
III Extinguishment of Native Title by Crown Grant
IV Native Title Legislation: Implications for Property Rights to Currently Unalienated Land
V Conclusion
Chapter Five: Radical Title: Lessons from the Sea
I The Crown's Title to the Territorial Seabed and Beyond: The Position Before Mabo
II The Crown's Title to the Territorial Seabed and Beyond Post-Mabo: WMC and YarmirrFC
III Summary
IV Yarmirr: The High Court
V Post-Yarmirr Developments
VI Conclusion
Part IV: The Practical Implications of the Crown's Radical Title
Chapter Six: Crown Acquisition of a Plenary Title: The Common Law Record Requirement and Statutory Regimes Regulating the Alienation of Land
I Occupancy as a Basis of Original Crown Ownership
II The Record Requirement
III Crown Land Statutes: Statutory Definition of 'Crown Land'
IV Legislative Provisions Dealing with the Power to Legislate Regarding Crown Land
V Conclusion
Chapter Seven: The Doctrine of Common Law Aboriginal Customary Title in Australia and Implications for South Africa
I Aboriginal Customary Law: A Source of Non-Derivative Common Law Title to Land
II First Limb of the Doctrine of Common Law Aboriginal Customary Title: Title Arising After Acquisition of Sovereignty
III Second Limb of the Doctrine of Common Law Aboriginal Customary Title: Title Arising Before Acquisition of Sovereignty
IV Doctrinal Underpinnings for Aboriginal Customary Title
V Aboriginal Customary Law as a Source of Non-Derivative Common Law Title to Land in Ceded and Conquered Colonies: South Africa Post-Richtersveld
VI Conclusion
Chapter Eight: Canada: Application and Implications of the Doctrine of Common Law Aboriginal Customary Title
I The Reception of Law in Canada: the Constitutional Status of the Canadian Provinces and Territories Reconsidered
II The Doctrine of Tenure, Radical Title and Aboriginal Land Rights in Canada
III Bipartite Colonial Contexts – Quebec and Aboriginal Title
IV Conclusion
Conclusions

Reviews

“the author has done an impressive job at articulating her thesis in a straightforward yet sophisticated style. Her comprehensive re-evaluation of relevant case law and her analysis of Mabo shows a depth of knowledge which flows through the entire book. Her meticulous research and attention to detail is clearly evident.
Reading this book is well worth the effort; the reader will come away with a new perspective on Mabo, and a fresh outlook on the future of Indigenous land rights. I would agree with Kent McNeil's description in the foreword that it is 'a formidable contribution'.
” –  Katie O'Bryan, Alternative Law Journal

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