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

Aboriginal Customary Law remedies a deficiency which presently impedes the study of Aboriginal land rights: there is no comprehensive work addressing the potential legal consequences for Aboriginal rights to land, beyond recognition of native title, ensuing from acknowledgement of the Crown’s radical title. In addressing the potential legal consequences, beyond recognition of native title, two interwoven theses are propounded: the first is the applicability, in the context of inhabited settled colonies, of a modified doctrine of reception. The second is that, contrary to the received view, the Crown’s radical title does not automatically confer full beneficial ownership of unalienated land in Australia where such land is not subject to native title. The consequence of these two theses is that Aboriginal customary law can amount to an independent source of common law title to land and, thus, an alternative to native title.

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 and as a result of her commitment to social justice was an active member of the Townsville Community Legal Service Management Committee from 2000 to 2008.