Feudal tenure and native title: revising an enduring fiction

Hepburn, Samantha 2005, Feudal tenure and native title: revising an enduring fiction, Sydney law review, vol. 27, no. 1, pp. 49-86.

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Title Feudal tenure and native title: revising an enduring fiction
Author(s) Hepburn, Samantha
Journal name Sydney law review
Volume number 27
Issue number 1
Start page 49
End page 86
Publisher Faculty of Law, University of Sydney
Place of publication Sydney, N.S.W.
Publication date 2005
ISSN 0082-0512
Keyword(s) feudal doctrine of tenure
feudal tenure
Summary 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.
Language eng
Field of Research 180101 Aboriginal and Torres Strait Islander Law
HERDC Research category C1 Refereed article in a scholarly journal
ERA Research output type C Journal article
Persistent URL http://hdl.handle.net/10536/DRO/DU:30002904

Document type: Journal Article
Collection: School of Law
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