The doctrine of tenure in Australia post-Mabo: replacing the 'feudal fiction' with the 'mere radical title fiction' - Part 1

Until the decision of the High Court in Mabo, the universal acceptance and application of the English doctrine of tenure in Australia led to the view that all titles, rights and interests in land had to be the direct consequence of some grant of the Crown. In Mabo, however, six justices of the High Court agreed that the common law, as it had been previously understood, should be changed to recognise native title rights to land; rights which do not derive from a Crown grant. The common law device adopted by the High Court to effect this change, and thereby reconcile the doctrine of tenure and native title when the Crown acquired sovereignty of Australia, was 'radical title'. This two-part article examines how the Mabo High Court redefined the English doctrine of tenure, or, more accurately, defined the Australian doctrine of tenure, by developing the concept of radical title. It will be seen that in order to achieve this redefinition, the court had to clarify two interrelated aspects of the common law: the applicability of the English (feudal) doctrine of tenure in Australia and the legal effect of the classification of Australia as settled. Part 1 lays the foundation for this analysis by examining the genesis of the doctrine of tenure in pre-Conquest England and the pre-Mabo effect of the colonisation of Australia and the reception of English land. The question posed in Part 2 is twofold: first, how and why the Australian doctrine of tenure, with radical title as its postulate, diverges from the doctrine of tenure in English land law. Secondly, what are the implications, beyond recognition of native title, of the redefined doctrine of tenure for Australian real property law? Crucially, it will be seen that the implications of the Australian doctrine of tenure are suggested by either pre-feudal forms of landholding or the traditional exceptions to the feudal doctrine of tenure, which both include allodial landholding. In particular, it will be seen that the High Court's restatement of the common law provides a basis upon which 'Aboriginal customary law title' can be a valid source of non-derivative common law title to land and thus an alternative to native title