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Disinterested truth: legitimation of the doctrine of tenure post-Mabo

Hepburn, Samantha 2005, Disinterested truth: legitimation of the doctrine of tenure post-Mabo, Melbourne University law review, vol. 29, no. 1, pp. 1-38.

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Title Disinterested truth: legitimation of the doctrine of tenure post-Mabo
Author(s) Hepburn, Samantha
Journal name Melbourne University law review
Volume number 29
Issue number 1
Start page 1
End page 38
Publisher Melbourne University Law Review Association
Place of publication Melbourne, Vic.
Publication date 2005-04
ISSN 0025-8938
Summary This article argues that it is time for the complete abolition of feudal tenure in Australian land law and its replacement with an allodial model better able to promote proprietary independence, equality and cultural neutrality. The article considers the questionable constitutional legitimacy of adopting strict feudal tenets in a territory already inhabited by indigenous occupants. It goes on to examine the various legitimation devices that the courts have utilised to sustain the feudal construct and the effect that Mabo has had upon feudal orthodoxy. In particular, the article outlines why post-Mabo tenure is incapable of embracing a pluralist land system; it is suggested that the Eurocentric character of feudal tenure and the structural impediments associated with the acceptance of a non-Crown title prevent it from ever being able to effectively integrate native title into the structure of property law. In light of this, the article argues that post-Mabo tenure lacks both legal and social legitimacy and the 'disinterested' perpetuation of this system must be brought to an end. The article argues that the time has well and truly come to replace feudal tenure with an allodial model based broadly on the system that has developed in the United States but with particularised adaptations. The removal of the Crown and its associated cultural assumptions from the land framework would, it is argued, allow land interests to develop according to their individual cultural origins. This would create a more responsive and balanced system better equipped to embrace the developments of contemporary common law jurisprudence.
Language eng
Field of Research 180112 Equity and Trusts Law
Socio Economic Objective 970118 Expanding Knowledge in Law and Legal Studies
HERDC Research category C1 Refereed article in a scholarly journal
ERA Research output type C Journal article
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Document type: Journal Article
Collection: Law
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