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

Ulla Secher is a Visiting Fellow with the Faculty of Law at the University of New South Wales, Sydney, Australia. She was admitted as a Barrister of the Supreme Court of Queensland in 1998.

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